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349 SURROGACY ARRANGEMENTS involve an agreement under which a woman agrees to become pregnant and to bear a child for another person or persons. She undertakes to transfer custody to those persons when the child is born.[387]
350 Such arrangements are often referred to as one of many emerging new or artificial reproductive technologies. However surrogacy differs in one important respect: it does not necessarily require the intervention of medical professionals. Surrogacy by way of natural intercourse with the commissioning father has occurred since biblical times, and is referred to in the ancient stories of Abraham, Sarai and the handmaid Hagar, and of Jacob, Rachel and their handmaid Bilhah.[388]
351 In more modern times, medical technology has allowed ‘partial’ surrogacy to occur without the need for natural intercourse, with the use of artificial insemination to achieve pregnancy. The surrogate mother’s own ovum is fertilised with the commissioning father’s sperm (or donor sperm). In cases of ‘full’ or ‘gestational’ surrogacy, ovum is extracted from a commissioning mother (or a donor) and is fertilised with the commissioning father’s sperm (or donor sperm); the embryo is then transferred to the surrogate mother’s womb. In most cases surrogacy provides the opportunity to create a child that is biologically related to at least one of the commissioning parents.
352 It is not within the scope of this review to discuss whether the practice of surrogacy arrangements is desirable, or how such arrangements should be regulated. What is within our brief is a consideration of whether adoption is the appropriate forum in which to regularise the outcome of a surrogacy arrangement.
353 The Government made a policy decision not to regulate surrogacy arrangements when it drafted the Assisted Human Reproduction Bill 1997. Rather, providers of medically assisted surrogacy services submit themselves to a voluntary accreditation regime. This requires them to gain approval from the National Ethics Committee on Assisted Human Reproduction (NECAHR) to assist in a surrogacy arrangement on a case by case basis. NECAHR is a ministerial committee established by the Minister of Health, which considers the ethical dimensions of new reproductive technologies proposed by providers of such technology.[389]
354 Surrogacy arrangements exist in a legal vacuum in New Zealand. When such arrangements do occur, the legal status and obligations of each participant and any resulting child must be determined in accordance with a range of family legislation that was not drafted with surrogacy in mind.
355 The legal status of the child in relation to each set of parents is defined by the Status of Children Act and the Status of Children Amendment Act. The latter legislation was enacted to address the needs of parties who achieved pregnancy with a donated sperm, donated eggs or both. Issues of legal status in surrogacy arrangements were not dealt with, but are affected by, this legislation.
356 The birth mother is regarded by current legislation as the child’s mother, with no regard to the circumstances in which the child was conceived. If the birth mother becomes pregnant as a result of natural intercourse with the commissioning father and she is married, the law presumes that the birth mother’s husband, if she has one, is the father of the child. If the marriage has been dissolved, a child born within 10 months of the dissolution is presumed to be the child of the former husband.[390]
357 These are legal presumptions, and the identity of the father may be rebutted by the facts of a particular case. In situations where the surrogate mother is not married, or the presumption of legal fatherhood is rebutted in favour of the commissioning father, the commissioning father will not have automatic guardianship rights even if he is named on the birth certificate.[391]
358 If the birth mother becomes pregnant as a result of artificial insemination, or becomes pregnant with a donated embryo, then she is the child’s legal mother. Her husband, if she has one, is the legal father of the child if he consented to the artificial insemination. The donors of sperm and ovum, and in surrogacy arrangements one or both of the commissioning parents, have no legal rights.[392]
359 The commissioning parents in a surrogacy arrangement are likely to have no legal rights in relation to the child that is eventually born, even if that child is conceived with their genetic material.
360 It is clear that, so long as surrogacy arrangements are not legally regulated, in order for an agreement to be effective an adoption of the resulting child by the commissioning parents will be necessary. To date, two adoption cases involving surrogacy arrangements have been heard in the Family Court.[393]
361 As the present legislation was not designed to deal with surrogacy arrangements a number of issues arise that will need to be considered. We consider here whether surrogacy should be dealt with as part of a new Adoption Act, or whether surrogacy demands special legislative attention.
Similarities and differences
362 Surrogacy and adoption have a number of elements in common. Equally, however, there are a number of important differences. We consider here the extent to which the two might be linked together, or might warrant individual consideration.
363 Both surrogacy and adoption involve a woman giving birth to a child and giving that child to someone else to raise. The surrogate mother may experience some of the same difficulties that are experienced by birth mothers who relinquish a child. Where the surrogate mother is also the genetic mother, the situation is even closer to that of adoption. A child born of a surrogacy arrangement might be expected to experience similar issues to adopted children about identity and genetic heritage.
364 In contrast, however, surrogacy involves the deliberate creation of a child who is intended to be brought up by particular parents. In most cases, the child will be genetically related to at least one of the commissioning parents. The surrogate mother conceives the child knowing that she will be giving it up, and in the case of gestational surrogacy she will not be the genetic mother of the child. To this extent, it can be argued that surrogacy is quite unlike adoption.
365 The argument can be made that because of the differences between a surrogacy arrangement and an ‘ordinary’ adoption, it is inappropriate to subject commissioning parents to the adoption process where one or both of them are genetically related to the child. Adoption involves a consideration of the parenting capabilities of the proposed adoptive parents and of whether their appointment will promote the welfare and interests of the child.[394] This does not occur when people utilise other forms of assisted reproduction in order to create a family; for example, the Status of Children Amendment Act establishes that the donors of sperm and ova are not the legal parents in such cases, and the recipients of such assistance are automatically considered the legal parents of a resulting child.
366 We noted in paragraph 360 that there have already been two adoption orders made as a result of successful surrogacy arrangements. However, there are indications that there have been more than two completed surrogacy arrangements in New Zealand,[395] and that adoption has not been used to regularise the status of the child. It is impossible to determine why adoption has not been used in these cases, but it may be that the commissioning parents are unwilling to subject themselves to the scrutiny that accompanies an adoption. The result is that there are children born of surrogacy arrangements whose status has not been confirmed by the court, or whose parents have achieved the legal status of parent by misrepresenting the facts.[396] If an alternative to adoption were offered, commissioning parents might be more likely to apply to have the status of legal parent conferred upon them.
367 Surrogacy does differ from other fertility treatments as a third party carries and gives birth to the child. This requires a greater personal investment than is involved in the donation of sperm or ova. The conferment of legal parenthood upon the commissioning parents should not be automatic.
Alternatives to adoption
368 The United Kingdom has a simplified ‘fast-track’ procedure which allows commissioning parents who have received a child through a successful surrogacy arrangement to become the legal parents of their child. Section 30 of the United Kingdom Human Fertilisation and Embryology Act 1990 provides that the court may make an order “providing for a child to be treated in law as the child of the parties to a marriage” if:
• the child has been carried by a woman other than the wife as a result of the implantation of an embryo or sperm and eggs or her artificial insemination, and
• the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo, and
• the conditions in subsections (2) to (7) are satisfied.
369 Subsections (2) to (7) establish a time limit for the application, create conditions as to domicile and age, set out the requirement for full and free consent to the order by the father[397] of the child where he is not the husband; and the woman who carried the child, and provide that the court must be satisfied no money or benefit other than for maintenance has been paid (unless payment is authorised by the court).
370 Where there is no genetic connection between the commissioning parents and the resulting child, an adoption application must be made in the usual manner. This is because such an arrangement amounts to a ‘pre-natal’ adoption agreement. Some consider that there is no difference to another adoption arrangement, except that it is agreed upon prior to conception.[398]
371 A recent enquiry[399] into the payments for and regulation of surrogacy in the United Kingdom considered that the restriction on payments was not effective, and has recommended that no section 30 parental order should be made unless the commissioning couple establish their compliance with the statutory limitations on payments. The Brazier Report recommended that the court have no jurisdiction to approve otherwise non-permissible payments.[400] In such cases, the commissioning parents would have to apply to adopt their child.
372 To ensure that the fast-track procedure is not abused, the Brazier Report recommended that the court should be able to order a DNA test so that it could ensure that one of the applicants is in fact a genetic parent of the child and that the child was not the child of the surrogate mother and her partner.
373 The United Kingdom law entrusts guardians ad litem with the responsibility of ensuring that the legislative requirements are fulfilled. The guardians ad litem are concerned that they are unable to check the criminal records of commissioning parents before they can report to the court. The Brazier Report concluded that:[401]
While we judge that only rarely will couples prove to have such convictions, when the law is invoked to entrust a child to the commissioning parents, and to sever any links with the surrogate who gave birth to him or her, it is a fundamental pre-requisite of protection of the child’s welfare to ensure that his or her prospective parents have no record of child abuse or related criminal conduct.
374 The current adoption legislation is a clumsy means of regularising the status of a child who is born pursuant to a successful surrogacy arrangement. It would appear that the current requirements may discourage commissioning parents from applying to adopt the child, for fear that the statutory criteria might be applied stringently or the courts will reverse their previous position. If status is not determined, the legal position of the child within its ‘social’ family is not secure.[402] This is an untenable situation.
Should commissioning parents be able to apply for a ‘parental order’ to confer upon them the status of legal parenthood?
Should parental orders for surrogacy arrangements be provided for in adoption legislation, or should they be enacted as a separate piece of legislation?
375 The United Kingdom model, whilst not without its difficulties, appears to be a logical way to regularise the status of a child born as a result of a successful surrogacy arrangement when that child is genetically related to one or both of the commissioning parents. If this route were to be taken, decisions would have to be made about whether payments should be prohibited, whether the commissioning parents should be screened for certain types of convictions,[403] and whether DNA testing is required.
376 Adoption would still be required where there was no genetic connection between the child and the commissioning parents, or where a dispute between the surrogate mother and the commissioning parents arose.
377 Commercial surrogacy services are viewed by many as constituting baby farming, and as contributors to the commodification of human life. However, criminalising the making of payment for surrogacy services is not likely to stop payments from occurring, and it may still be in the best interests of the child to remain with the commissioning parents. This review offers the opportunity to prohibit the offering or receipt of payment for profit for a surrogate pregnancy.
Should it be an offence to offer or receive payment for the gestation of a child?
Should there be an exception for maintenance or pregnancy and birth related expenses?
Should the commission of an offence relating to payment make the commissioning parents ineligible for the proposed parental order?
378 Adoption legislation imposes restrictions upon advertising in relation to the adoption of a child.[404] This restriction, like that prohibiting payment, can be connected to society’s condemnation of baby-farming and the commodification of children. We seek submissions as to whether advertising should be similarly restricted in relation to surrogacy, and whether this should have an effect upon the ability of the commissioning parents to apply for the proposed parental order.
Should advertising be restricted in relation to surrogacy arrangements?
Should the breach of a restriction on advertising make the commissioning parents ineligible for the proposed parental order?
379 The Brazier Report considered that the State has a legitimate role in these circumstances to enquire as to whether the commissioning parents have convictions for child abuse or other related crimes. We seek submissions as to whether this is desirable, should a fast-track procedure be provided.
Should commissioning parents be screened for criminal convictions before an order is made?
380 DNA testing could also be important in these cases, as the availability of a fast-track procedure is premised upon a genetic connection between the commissioning parents and the child. If there is no genetic connection it is difficult to distinguish the arrangement from an adoption arrangement. Caution should also be taken to ensure that the child is not that of the surrogate mother and her partner.
Should DNA testing be required to confirm a genetic link to the commissioning parents?
Using adoption to regularise the arrangement – some issues
381 If the option set out above is rejected and adoption is to be used to regularise the status of the child and the commissioning parents, a number of issues must be addressed. Certain parts of the adoption legislation may need to be re-expressed in relation to surrogacy arrangements.
382 In two surrogacy cases the legality of payments made by the commissioning parents to the surrogate mother was questioned. It is an offence under the Adoption Act to give or receive, or agree to give or receive, any payment or reward in consideration of an adoption or proposed adoption. In Re P Judge McAloon found that the payments made were not for profit, but rather for maintenance, and therefore no offence was committed.[405]
383 If adoption continues to be used for these cases, consideration should be given as to whether it should be an offence to provide or receive payment for the gestation of the child, and as to the effect such an offence should have on the eligibility of the commissioning parents to adopt the child.
Should payment for the gestation of a child, apart from maintenance or pregnancy and birth related expenses, be made an offence?
What impact should the commission of the offence have upon the eligibility of the commissioning parents to adopt the child?
384 In Re P the prohibition placed by the Adoption Act upon advertising was also at issue. The commissioning parents had placed an advertisement “Adoption: Nelson couple desperate for child – can you help”. Judge McAloon held that although a penalty is created by section 26 which could be pursued by the appropriate authorities, the commission of the offence does not invalidate any arrangement made pursuant to the advertisement.[406]
385 If adoption continues to be used to regularise the status of a child born as a result of a surrogacy arrangement, it is necessary to consider whether the restriction on advertising in relation to adoption should also apply in relation to surrogacy arrangements.
Should advertising for surrogate mothers be prohibited?
Should there be an exception for certified fertility clinics/providers?
What impact should a breach of the restriction have on the ability of the commissioning parents to adopt?
386 Another contentious issue that arises is the role that Social Welfare should play in such arrangements. At present Social Welfare is required to authorise the placement of the child with the adoptive parents and to report to the court, as in any other adoption to legal strangers. Should Social Welfare still be compelled to approve placement and produce a report determining the suitability of the commissioning parents as adoptive parents? Should this occur before surrogacy arrangements are made (although this could only be controlled in the case of medically assisted surrogacy) or before an application to adopt?
387 In most cases at least one of the commissioning parents will be biologically related to the child that is eventually born. Parents without fertility problems who wish to have children are not assessed as to their suitability, nor are those who achieve pregnancy through artificial insemination of donor sperm. Surrogacy may be pursued because Social Welfare has already judged the couple unsuitable for adoption. If all parties consent to the adoption, why should Social Welfare play a role?
388 One way to resolve this issue might be to have a presumption that commissioning parents are suitable parents, unless they have been convicted for child abuse or like offences. In that event participating in a surrogacy arrangement, without the prior approval of Social Welfare (which probably would not be given) would constitute an offence. This would avoid unnecessary involvement of Social Welfare, but provide a degree of protection for the child.
Should commissioning parents be deemed to be suitable parents for adoption unless they are shown to have convictions for child abuse?
389 Another way of addressing the surrogacy issue could be to provide that in the case of adoption in the context of a surrogacy arrangement it should be presumed that placement with the commissioning parents is in the best interests of the child.
Should it be presumed that in the case of adoption in the context of a surrogacy arrangement that placement with the commissioning parents is in the best interests of the child?
390 In Chapter 7 we proposed that de facto couples might have to have been in the relationship for a determined period of time before an application for adoption could be considered, in order to assess the stability of the relationship. Bearing in mind that couples who can conceive naturally have no such restrictions placed upon them, should such a proposed requirement be waived in the case of a surrogacy arrangement?
Should the prerequisite of relationship duration be waived in the case of an adoption involving a surrogacy arrangement?
391 The Adoption Act provides that in certain circumstances the consent of the birth parents may be dispensed with in order that an adoption proceed. It may be that a breach of a surrogacy arrangement, particularly where the surrogate mother is not genetically related to the child, may be suitable grounds for dispensation with consent.
Should breach of a surrogacy arrangement be grounds for dispensation of parental consent to adoption?
If so, should such dispensation be restricted to situations where the surrogate parents are not genetically related to the child?
392 Earlier in the paper we suggest that an adopted child might be entitled to inherit from both its birth family and its adoptive family. Surrogacy arrangements involve slightly different circumstances that should perhaps be taken into account here. A child created as a result of a surrogacy arrangement is never intended to be the child of the surrogate mother. It is deliberately created to be the child of another couple. In some cases, the child may not be genetically related to the surrogate mother.
Should a child created as a result of a surrogacy arrangement be entitled to inherit from the surrogate mother as well as the commissioning (adoptive) parents?
Should there be an exception where the child is not biologically related to the surrogate mother?
393 Conditions could be attached to an adoption order in adoptions involving surrogacy as may be the case in other adoptions. A surrogate mother may be the biological mother of the child and wish to preserve some rights of access or contact, or the surrogate mother may have bonded with the child during pregnancy and have an interest in preserving contact.
Should it be possible to attach conditions to an adoption order in the context of a surrogacy arrangement?
Could such conditions be enforceable?
If so, how?
394 Should children conceived as a result of a surrogacy agreement be governed by the same access to information provisions as a child adopted in ordinary circumstances? There may be no justification to create a different regime. Even if the surrogate mother is not the biological mother, she gave birth to the child and has an interest in the child’s development. The child in turn has a legitimate interest in the surrogate mother that might warrant protection. These interests are heightened in situations where the surrogate mother is also the biological mother of the child.
Should adoptions involving surrogacy arrangements be subject to the same access to information regime as other adoptions?
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