New Zealand Law Commission
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4.1 In this chapter we consider the parental status of the various people involved in surrogacy arrangements, and discuss what legal changes might be made to recognise better the roles the parties play in relation to the child born of surrogacy.
4.2 In this discussion paper, we call the woman who gestates or carries the child the surrogate mother. We call the persons who arrange with the surrogate mother for her to gestate a child for them the commissioning parents. When the commissioning parents are in a caregiving role with the child we call them the social parents. Full surrogacy (IVF) is where the child has no genetic connection to the surrogate mother. Traditional or partial surrogacy is where the child is the genetic child of the surrogate mother. We speak of genetic relationship when referring to a child having been conceived using the gamete of a parent, and gestational relationship when referring to the relationship between the child and the woman who gives birth.
4.3 Surrogacy usually involves a woman agreeing to carry a child for another couple on the basis that she will pass the child to them to raise from birth. Surrogacy can take many forms but the most common arrangements involve:
• A woman conceiving a child through sexual intercourse with the commissioning husband;
• A woman being artificially inseminated with the commissioning husband’s semen;
• A woman having an embryo transferred to her womb that has been created using the gametes of the commissioning couple;
• A woman having an embryo transferred to her womb that has been created using a donor ovum and donor sperm;
• A woman having an embryo transferred to her womb that has been created using a donor ovum or donor sperm and the gamete of one of the commissioning parents. 137
4.4 Surrogacy arrangements are occurring in New Zealand both privately and with the assistance of fertility clinics using in vitro fertilisation (IVF). There are currently no laws expressly governing surrogacy, although provisions in the Human Assisted Reproductive Technology Bill (the HART Bill) propose banning commercial surrogacy and making surrogacy agreements unenforceable.
4.5 Where surrogacy is being practised, major questions arise about the legal parental status of the parties involved in the arrangement. In law, the baby is the surrogate mother’s child (and her husband or male partner’s, if she has one) even though one or both of the commissioning parents may be genetically related to the child and both parents intend to assume responsibility for the child’s day-to-day care from birth. If the child is conceived via IVF in New Zealand at least one commissioning parent will always be the child’s genetic parent.
4.6 In private arrangements the surrogate mother is always the child’s genetic parent. Private arrangements commonly involve the commissioning father providing his semen for use in self-insemination, although, in some cases, a donor’s semen may be used or the semen of the surrogate mother’s husband or partner.
4.7 Over the past three decades surrogacy has gained a heightened international profile in the Western world. In July 1978, the world’s first baby was born in the United Kingdom, having been conceived using IVF. In vitro fertilisation meant that an embryo could be transferred to a woman’s uterus that had been fertilised outside her body using her egg and her partner’s sperm or, alternatively, the sperm of a third-party donor.
4.8 The procedure opened up the possibility that a fertilised embryo could be implanted into the uterus of another woman, rather than the woman who had produced the eggs. For the first time, a woman could gestate and give birth to a child to whom she had no genetic relationship. A woman who did not have a uterus could, with the help of a surrogate, have her own genetic child, despite her inability to gestate or give birth. It was just a matter of time before couples with female infertility looked for ways of having a child through IVF, with the child being gestated by a surrogate mother.
4.9 Private surrogacy arrangements became possible and more appealing as the public became aware that conception could be achieved in private, without sexual intercourse or medical assistance, using a syringe. Women began offering themselves as surrogate mothers and agencies were established to facilitate these arrangements.
4.10 However, two highly publicised court cases, a year apart, demonstrated the types of serious moral, ethical and legal issues that surrogacy arrangements can raise.
The Baby Cotton case
4.11 In 1985, UK resident Kim Cotton entered into a surrogacy arrangement with a US couple to be artificially inseminated with the husband’s semen and carry a child for them. The agreement was arranged through an agency and Ms Cotton was paid for her services.
4.12 After the baby’s birth in England the Social Services Department issued an order preventing the mother from relinquishing the baby to the commissioning couple. Ms Cotton responded by leaving the hospital without the baby, thereby leaving it without a primary caregiver. The commissioning father applied to the Court in turn for care and control of the child, which was granted on the basis that the commissioning couple were the best persons to care for the child as the birth mother had relinquished her rights.
The Baby M case
4.13 The second case occurred in the United States in 1986. A surrogate mother gave birth to a child conceived using the commissioning father’s sperm and her own egg, but later changed her mind about relinquishing the baby.
4.14 Baby M was handed over to the commissioning couple three days after birth, but was later returned to the surrogate mother on her request. She disappeared with the baby. The commissioning couple instructed a private detective to locate the mother and then filed proceedings in court to enforce the surrogacy contract. The agreement was upheld at first instance but overturned on appeal. The appellate court ruled that the surrogacy contract was void and unenforceable, and determined the issue in accordance with the best interests of the child. The commissioning parents were given custody of Baby M, although the mother was also awarded visitation rights as the child’s natural mother.
4.15 The cases sparked widespread ethical and moral debate on the impact of surrogacy arrangements on the birth mother and the child. Some argued that surrogacy “commodified” the child and exploited the birth mother. Others saw it as beneficial insofar as it provided otherwise infertile couples with the opportunity to become parents and was consistent with female reproductive autonomy and the right of adult parties to enter into their own contractual arrangements.
4.16 Many jurisdictions responded promptly by passing laws prohibiting surrogacy and making it unlawful to advertise or facilitate such arrangements. Some passed what can be described as “ambivalent half measures”, neither supporting surrogacy arrangements nor prohibiting them entirely. Many drew a distinction between commercial surrogacy, which was generally outlawed, and compassionate surrogacy arrangements.
4.17 Recently, a small number of jurisdictions have provided legal support for surrogacy arrangements in limited circumstances, and have created laws reallocating parental rights and responsibilities. Those approaches are discussed later in paragraphs 4.69–4.81.
4.18 Until recently, government policy in New Zealand has been not to legislate but to hold a “watching brief” in the area of surrogacy. In 1984, the Department of Justice released an initial discussion paper on the issue, although this failed to identify any clear consensus on the way to proceed with policy.
4.19 The area remained unregulated until 1993 when the Government established the Interim National Ethics Committee on Assisted Reproductive Technologies (INECART). A fertility clinic application to carry out IVF compassionate surrogacy was refused by INECART; a stance that was criticised by the Ministerial Committee on Assisted Reproductive Technologies in 1994.
4.20 In 1995, INECART was replaced by the National Ethics Committee on Assisted Human Reproduction (NECAHR), which was established to consider surrogacy and other issues. It gave ethical approval for applications for non-commercial surrogacy using IVF in 1997, and issued draft guidelines indicating the conditions upon which it was prepared to approve IVF surrogacy arrangements on a case-by-case basis.
IVF surrogacy under NECAHR
The clinic guidelines
4.21 Cases involving full IVF surrogacy continue to require NECAHR approval in accordance with the current clinic guidelines. In certain circumstances, the committee may depart from the guidelines, but on a case-by-case basis.
4.22 The principles set out in the guidelines indicate an intention to balance the harms and benefits of reproductive technologies in ways that:
... respect individual’s wishes, demonstrate caution in relation to possible harms, and give due respect to society’s evolving norms. In particular, the guidelines acknowledge the intrinsic worth of every person, who must not be used as a means to an end, for example through commercialisation and commodification.
4.23 The principles also stress that:
Tikanga Maori has an important role, reflecting values evident in New Zealand society generally. Notions of caring for children in the wider whanau, gifting children through whangai, and knowing whakapapa underpin the guidelines. There is also emphasis on caring family relationships and altruism within families and among friends.
4.24 Key requirements for approval under the guidelines are that one or both commissioning parents should be the potential child’s genetic parents; that there should be a medical condition that precludes pregnancy; that the birth mother should preferably be a family member or close friend; and that pregnancy and childbirth expenses may be paid but that there should be no payment in lieu of employment.
4.25 The guidelines also state that the birth mother and her partner should have completed their family; that both parties must have had legal advice independent of each other relating to the legal issues, and that both parties must have submitted to a counselling assessment in which they have been confronted with the emotional and legal risks and challenges of such arrangements.
4.26 The provider or fertility clinic must explicitly set out in its application the risks to the birth mother’s safety during treatment and pregnancy and include any relevant documentation from her medical advisers. It must also treat the mother in accordance with the Reproductive Technology Accreditation Committee (RTAC) guidelines and keep NECAHR informed on the progress of the case through to the birth and proceedings for adoption or guardianship if there are any.
The NECAHR experience under the guidelines
4.27 There have been 30 applications for IVF surrogacy arrangements since the guidelines were issued in 1997. Of these, 24 have been approved, three declined and a further three either withdrawn or deferred pending additional information. NECAHR has advised that, as of February 2004, four of the approvals have resulted in live births, one of which has included twins.
4.28 It remains unclear why so few live births have resulted from the 24 approvals. It is presumed that some applicants or their surrogate mother may have changed their minds about proceeding during the approval period. Other reasons could be that their circumstances may have changed, or that attempts at IVF treatment have been unsuccessful.
Non-IVF (private) surrogacy in New Zealand
4.29 Private self-insemination surrogacy arrangements have been and continue to be made in New Zealand. They can proceed without NECAHR approval and can be given effect to privately without medical intervention and without sexual intercourse. In private arrangements the child is always genetically related to the surrogate mother.
4.30 There is no reliable means of knowing the incidence of private surrogacy in New Zealand. Not all surrogacy arrangements result in adoption. From the Commission’s consultations, a common scenario seems to be that the surrogate mother enters her own name and the commissioning father’s name on the birth certificate without any other steps being taken to transfer or establish the commissioning mother’s legal parental status in relation to the child. The commissioning parents have custody of the child and care for the child on a day-to-day basis.
4.31 In four cases known to the Commission adoption orders have followed a surrogacy arrangement. There are likely to be other unreported decisions. Media reports in the early 1990s indicate there were other cases where commissioning parents adopted the child. Adoption applications may also proceed under the guise of step-parent adoptions, where the fact that the child arose from a surrogacy arrangement is not disclosed to the Court. A surrogacy arrangement can also be hidden if the surrogate mother registers the names of the commissioning parents on the child’s birth certificate having previously registered herself with her doctor, midwife or hospital in the name of the commissioning mother. This would be unlawful but there is anecdotal evidence that it has happened.
4.32 There is now a website where people who are considering entering into a surrogacy arrangement can gain information, advice and support from people who have already gone through the experience. The site also acts as a forum in which intending commissioning parents and intending surrogate mothers can make contact with each other and begin negotiations. Contacts are also made through other international surrogacy websites, magazines and television shows.
4.33 While preparing this paper the Law Commission contacted two women who have been surrogate mothers in the last three years. We also met with a commissioning couple whose child was 19 months old, and spoke to a third woman who wishes to be a surrogate mother and who was seeking a commissioning couple at the time. There are clearly others who have engaged in private surrogacy or who are trying to set up arrangements. The details of some of these interviews are set out in the boxes below.
Babies O and P
M has taken part in two surrogacy arrangements for two different couples over the past three years. She gave birth to a baby girl, O, for a couple in Auckland in March 2001, and gave birth to a baby boy, P, in June 2003. In both cases, the children were conceived at her home via the “syringe method”, using the sperm of the commissioning fathers. M is a “traditional surrogate” as the children were conceived and gestated using her own eggs. She is their genetic and gestational mother.
M told us that she had always known that she wanted to be a surrogate. As a single mother with one child, she found motherhood “wonderful” and knew that she could carry and give birth easily. For her, surrogacy was a gift that would enable the commissioning parents to give a lifetime of care and nurturing to the child.
M initially made contact with O’s parents after seeing an article about an intending surrogate mother in the New Zealand Women’s Weekly. M contacted this woman who forwarded her some of the letters she had received from intending commissioning parents. M responded to a letter from O’s parents and contact was made.
In the second case, P’s parents, who live in Australia, got in contact with M through a website.
The couples in both cases were seeking a surrogate as a result of female infertility. M says she chose to enter into the arrangements because she got on well with the couples and found them to be most interested in what they could give the child. Both couples were also willing to enter into “open” surrogacy arrangements.
M did not receive monetary payment in either case (because it is her view that this would be “selling a child”), although O’s father did do some carpentry work for her as a token of the couple’s gratitude.
In both cases, M and her family (her mother, grandmother and son) developed strong relationships with the commissioning couples before and after the births, and have remained in regular email and phone contact since. M has photos of the children but states clearly that she does not consider them her own. She refers to herself simply as the “tummy mummy” and wants the children to know her by her first name.
M has just returned from a trip to Australia with her son to see P and his parents. She told us her son had been very excited after P’s birth. He told his school class about his mother’s surrogate pregnancy and bought P some special clothes.
Legal issues and status
O’s commissioning parents chose to draw up a “statement of intentions” prior to her birth which, while not legally binding, set out the parties’ intentions and their agreed positions in the event of the unexpected.
O’s commissioning parents are now her legal parents via adoption. Although O’s original birth certificate showed M as her legal mother and the commissioning father as her legal father, the couple proceeded with adoption after birth. However, O could not be handed over to her parents immediately because of the Adoption Act requirement that a baby intended for adoption must not be taken into the home of the adoptive parents until the consent for adoption is signed (10 days after the date of birth). O’s parents stayed in M’s mother’s house during this time.
P’s case was dealt with more informally. Although M talked through all contingencies with the commissioning parents, the parties opted not to draw up a written agreement detailing their positions. P’s parents also elected not to adopt. After P was born, the couple cared for him in a motel in the city until his birth certificate, certificate of Australian nationality by descent and an Australia passport could be obtained. They then returned with him to Australia.
P’s commissioning parents now have day-to-day care of P, but do not have formal parental rights and responsibilities under New Zealand law. P’s father is not a guardian for the purposes of the Guardianship Act 1968, although he is his genetic parent and registered father on his New Zealand birth certificate. P’s social mother has no legal status in relation to the child.
Baby J was born to K, a first-time surrogate mother in early 2002. Like M, K was a traditional surrogate who was commissioned by Mr and Mrs A to conceive a child using Mr A’s sperm and her own egg. K is a single mother of three children who, at the time of being commissioned, had recently separated from her husband. He supported her decision, which was a long held ambition of hers.
The As first made contact with K through a website. Mrs A had already had a hysterectomy for medical reasons before meeting Mr A. She had two children from a previous relationship. The As and K developed a friendship and entered into the surrogacy arrangement after meeting in person. The As say they were willing to compensate a surrogate mother for reasonable expenses, but did not want to feel that they were “buying a baby” or that the surrogate mother was primarily motivated by money. Money did change hands but the amount was not disclosed.
The As and K maintained a close relationship during the pregnancy. The As visited K a couple of times in another town and were present at each scan. Six weeks prior to the birth, K and her youngest child moved in with the As because of medical complications. They stayed with the As until 10 days after the birth before returning to their hometown. K’s husband cared for their two older children. Mr and Mrs A were open with their family, friends and work colleagues about the surrogacy arrangement.
Since the birth 19 months ago, the As and K have visited each other five times and remain in regular contact. The couple say that their son knows K by her first name and that they will explain her role to him when he gets older.
The As chose to avoid the legal system in entering into the surrogacy. They did address certain issues with K before conception (such as what they would do in the case of multiple births or disability) but they did not have a formal written agreement. Nor did they adopt J because it was the view of Mr A that the “law should not interfere” and that he should not have to adopt his own child. The birth certificate shows K as the mother and Mr A as Baby J’s father. Mr A had not understood that he was not J’s legal guardian until his meeting with the Commission.
Mr A has made it clear that he and his wife never doubted that K would hand over the child, despite the concerns of some family members that, as a first-time surrogate, K might not be able to part with the child. This was not a problem and K was very focused on her role as surrogate. The one negative experience occurred at the hospital when a charge nurse put a security guard on K’s door to stop Mrs A removing Baby J. The As were offended and stressed by this attitude.
4.34 The child of the surrogacy arrangement is born into a situation where his or her social or caregiving parents may have no legal responsibilities and rights in relation to the child. The surrogate mother is the child’s legal mother, even if the child is conceived with the egg of the commissioning mother or a donor egg.
4.35 The commissioning father will only be the child’s father in law if the surrogate mother is single and his sperm is used. If the surrogate mother is married or in a de facto relationship, her husband or partner will either be presumed or deemed to be the child’s parent, providing he knew of and consented to the procedure.
4.36 Where the surrogate’s husband is deemed to be the child’s parent, the commissioning father will have to adopt the child in order to secure parental status, even if he is the child’s genetic father.
4.37 Where the surrogate’s husband or partner is only presumed to be a parent, the presumption may be displaced on proof of the commissioning father’s paternity. However, even then, the commissioning father would need to apply to the High Court for a declaration of paternity, and to the Family Court to be appointed the child’s guardian, even if he was registered as the child’s father on the child’s birth certificate.
4.38 The only way in which commissioning parents can acquire full legal parenthood of the child is by obtaining an adoption order. However, that route is possible only if they are married to each other and may be unpalatable to some. Mr A in the Commission interview had taken no steps to secure legal responsibilities and rights in relation to his child because he considered it wrong that he should have to adopt his own child to become a legal father.
4.39 If adoption is not pursued, the legal situation is unsatisfactory because neither commissioning parent has any legal rights and responsibilities in relation to the child they are raising, even though the father’s name may be registered on the birth certificate. Difficulties can arise where the social parents seek to enrol the child at school, apply for a passport for the child, or consent to or refuse medical treatment on the child’s behalf. Problems can also arise if the social parents separate and there is a dispute over the care and upbringing of the child. It may be confusing and embarrassing for children to have their surrogate mother named on their birth certificate rather than the person they recognise as their mother.
4.40 If the HART Bill becomes law there will still remain a disjunction between the child’s legal parents and actual caregivers. While the Bill makes surrogacy agreements unenforceable, it does not address parental status issues.
Surrogacy arrangements where adoption has been used to gain legal parental status
4.41 The Adoption Act 1955 prohibits adoptive parents from advertising for a child, paying money for a child and from having the child in their home with a view to adoption. In the past, the courts have overcome these difficulties in the few adoption cases that involved surrogacy, but the path has been far from easy.
4.42 In Re Adoption of P the Court was asked to make an adoption order in favour of commissioning parents four years after a surrogacy arrangement. Despite concerns that the applicant couple had breached the Adoption Act by advertising and paying money to the birth mother and by assuming care of the child without approval from the Department of Child, Youth and Family Services (CYFS), the Court made the orders for adoption on the basis that the commissioning parents were suitable candidates and that the money was paid for maintenance purposes during pregnancy, not for adoption.
4.43 A similar approach was taken in Re Adoption of G where the Court made final orders for adoption on the basis of the suitability of parents, despite the facts of the case showing a number of apparent breaches of the Adoption Act 1955. The commissioning parents had entered into a surrogacy arrangement after being declined on two previous occasions by CYFS as adoptive parents because of their poor financial situation and marital conflict. They had paid $12 000 to the surrogate mother, had care of the child since its birth and had possibly made some untrue statements to the adoption social worker when interviewed.
4.44 There have been fewer difficulties where the adopting parents were full genetic parents to the child. In Re Adoption of H a final order for adoption was made in respect of a baby girl born as the result of a full (IVF) surrogacy arrangement. The judge made a final order immediately on the grounds that “special circumstances” existed because the baby was the full genetic child of the commissioning parents. The gestational mother had consented to the adoption.
4.45 In Re Adoption of G and Re Adoption of P the Court’s approach was that breaches of the Adoption Act 1955 did not bar the making of an adoption order, though these factors were matters to be taken into account by the Court when assessing the suitability of the applicants as parents. Another court might take the approach, as the Brazier Committee has done in the United Kingdom, that any argument that payment is for the surrogacy and not for the baby is specious. The HART Bill will make payments unlawful but will still allow payment of expenses. Payment of expenses may still breach the Adoption Act 1955, however.
4.46 It is clear from the facts of Re Adoption of G that the commissioning parents suffered stress and anxiety during the adoption process because they were not aware that it was unlawful to take the child into their home after birth if they were contemplating adopting the child. The Department of Child, Youth and Family Services took the view that adoption orders should not be made because the applicants had breached the Adoption Act 1955. This demonstrates the difficulties in using adoption as it is currently formulated as a means of granting parental status to commissioning parents.
4.47 The Law Commission, in Report 65 Adoption and Its Alternatives, addressed surrogacy issues as they related to adoption, indicating the view that surrogacy arrangements could be fitted within an adoption model but needed adaptations to address the “front end” issues that surrogacy raised: for example, screening of the surrogate mother and commissioning parents before the arrangement was entered into. The Commission favoured screening by CYFS given that the child might not be genetically connected to both of the commissioning parents.
4.48 Recent reports and research data indicate that surrogacy continues to take place despite attempts to prohibit or regulate it. Surrogacy appears to be being used as a “last resort” by commissioning couples who cannot achieve or sustain pregnancy because of female infertility. For the most part, these arrangements appear to go to plan.
4.49 Although the public debate around surrogacy is relatively new and has been heightened with the development of new birth technologies, records of surrogacy arrangements date back to the Bible. In Genesis, Sarai could not conceive a child with her husband so arranged for her maidservant Hagar to sleep with him. She later threw Hagar and her baby son out of the house. That was clearly an unhappy ending, although, interestingly, the child stayed with the birth mother. There is no reason to doubt that similar arrangements have been made throughout the ages.
4.50 When surrogacy using birth technologies first entered the public consciousness in the 1980s, it aroused intense international controversy for the significant ethical and moral issues it was said to raise. These early concerns predominantly related to concepts of “baby buying”, and the notion that surrogacy had the potential to exploit less economically and occupationally advantaged women by those who did not want to go through the inconvenience of pregnancy.
4.51 There is no evidence that surrogacy is being used by some women simply to avoid pregnancy. Research does indicate, however, that surrogate mothers are usually from lower socio-economic groups than the commissioning parents. Some mothers are living alone and have children of their own to support.
4.52 The Brazier Committee’s review of surrogacy in the United Kingdom reported in 1997/98 that the perceived public consensus was that surrogacy was now viewed as a legitimate last resort option for infertile couples, but that there remained fundamental concerns about the child’s welfare and the protection of the surrogate mother’s interests. The Committee rejected claims that surrogate mothers should be paid for their services (as opposed to payment of expenses only) and recommended that the term “expenses” should be strictly defined. This was on the basis that payments may amount to “baby selling” and encourage vulnerable women into acting as surrogates against their better interests. The report’s conclusions have been criticised and have not been implemented in the United Kingdom.
The surrogate mother
4.53 Recent overseas research indicates that women are offering themselves as surrogate mothers out of mixed motivations of altruism and financial gain. They are said to have high levels of satisfaction and altruism in providing infertile couples with the “ultimate gift” of a wanted and long-awaited child.
4.54 In the United States, a study of 200 surrogate mothers in 1999 found that the women who participated in the surrogacy programme were emotionally stable, with personalities that enabled them to compartmentalise their roles as surrogate mothers and parents. Typically, they perceived surrogacy as a positive emotional experience, enjoyed pregnancy, had good relationships with their children, and supportive home environments. The study concluded that although most were motivated by an altruistic desire to “help” others, most also saw surrogacy as a means of gaining funds.
4.55 In a 1994 British survey of 19 surrogate mothers, only three said that money was the sole or main reason they entered a surrogacy arrangement, although most said it was a factor in their decision. Eleven women identified the joy and pleasure that was provided for the commissioning couple as the best part of being a surrogate mother.
4.56 All but one of the 19 surrogate mothers had given up the baby to the commissioning parents after birth. Five spoke of their sorrow and distress about parting with the child, but said that these emotions were mixed with happiness for the commissioning couple and satisfaction at having played a key part in helping them create a family. All but two were in some form of contact with the commissioning family after the birth and all believed the child should be told the circumstances of its birth. The women reported few hostile responses from others.
4.57 Little is yet known about children born of surrogacy and the impact surrogacy can have on their personal and emotional development. Although perceptions are growing that it may not be harmful, early expressed concerns were that the children might grow to feel they have been “bought” by their commissioning parents or given away by their birth mother. Feelings of being bought and sold could have the potential to make children feel they need to be worth the expense.
4.58 Others have arguedthat children born of a surrogacy arrangement have unique advantages, in that they know they were much wanted and that their creation was a conscious and joyous achievement, rather than an unplanned or regretted sexual encounter. If payment were involved it could also be argued they would know their birth mother had been properly compensated rather than exploited.
4.59 The prohibition in UNCROC against “the abduction of, the sale of or traffic in children for any purpose or in any form” would not appear to be breached where surrogacy arrangements are made, particularly where payments other than expenses are not paid. Surrogacy arrangements are made before a child is conceived or born. Also, the courts’ approach to date has been that where money did change hands it was not a payment for the baby but maintenance for the mother during pregnancy.
Surrogacy and Mäori customary practices
4.60 The 1994 Ministerial Committee on Assisted Reproductive Technologies commented when considering surrogacy that: “the understanding of family and parenting held by many Mäori may (be) different from those of Pakeha”. It was concerned that regulation in this area should not cut across Mäori customary practices. In considering surrogacy, the Ministerial Committee concluded:
No rules should be developed which prohibit ordinary sexual relations or whangai, or which place in jeopardy the prospect of a surrogate mother’s playing a part in the offspring’s life or the offspring’s right to information about genetic origins. There should be transparency and accountability in surrogacy. Openness rather than secrecy is to be encouraged.
4.61 Mäori customary practices of whängai or atawhai are similar to surrogacy, insofar as the child is cared for by persons other than the birth mother, and the matua whängai (adopting parent/s) are given a child to raise – often because of their own inability to have a child.
4.62 However, there are also significant differences, the main one being that the whängai child will nearly always remain within the wider family structure of the birth mother, whereas in surrogacy there is often no familial connection between the surrogate mother and the commissioning parents.
4.63 Because the commissioning parents will usually need to adopt a child born of surrogacy in order to obtain legal responsibilities and rights as parents, the child may not have a relationship with or even know his or her birth mother. The information the child has will depend entirely on the decisions of the commissioning parents. By contrast, whängai children will almost always know their birth parents and the circumstances surrounding their conception and birth.
4.64 Other differences include the methods of conception and the fact that some surrogate mothers are paid for carrying a child. Whereas natural intercourse is the norm in whängai, conception is usually achieved in surrogacy through self-insemination or with fertility clinic assistance using advanced human reproductive technologies.
4.65 Western governments have responded in three ways to the existence of surrogacy since the Baby M and Baby Cotton cases. Some jurisdictions prohibit all types of surrogacy and so issues of legal parental status do not arise. Others have introduced limited legislative measures such as bans on commercial surrogacy arrangements, while in others there has been no legislative response at all. In these latter situations any reallocation of parental status must be fitted into existing models, the most common being adoption. In only a few legislatures have steps been taken to provide a tailor-made, fast-track mechanism to transfer legal parental responsibilities and rights to commissioning parents in surrogacy rather than by means of adoption.
4.66 In many American States, some European countries and in the States of Queensland and Tasmania, Australia surrogacy has been banned by imposing civil and criminal penalties on those who enter into or facilitate surrogacy arrangements.
4.67 In other jurisdictions in the United States, Australia and in the United Kingdom, there are no laws specifically prohibiting compassionate surrogacy arrangements, although commercial agreements are banned and/or the contracts made unenforceable. Kentucky, Louisiana, Nebraska, Washington, Victoria, Australia and the Australian Capital Territory, for example, have all passed laws that deem paid surrogacy contracts unenforceable. In Victoria, it is also illegal to advertise or receive payment for surrogacy, although altruistic surrogacy is allowed. Even though compassionate surrogacy has been permitted in these jurisdictions, laws have not been passed reallocating parental rights.
4.68 There are no laws covering surrogacy in New South Wales and Western Australia. Adoption applications are considered on a “best interests of child” basis with the courts commenting that they would not want their decisions to grant adoption to be seen to approve such arrangements.
Enactment of laws dealing with reallocation of parenthood
4.69 The United Kingdom, Israel, and the States of Florida, New Hampshire and Virginia have all enacted legislation to reallocate parenthood in surrogacy arrangements. Diverse legal mechanisms have been used to do this. So long as the parties in Israel and the three US States comply with set criteria, the law facilitates the legal recognition of commissioning parents as parents with legal responsibilities and rights in relation to the child. The UK model is less prescriptive in determining which parents can access this fast-track procedure.
4.70 Israel is the only country to have a comprehensive surrogacy regulatory scheme, although this applies to full (IVF) surrogacy only. Legislation followed the 1994 Aloni Commission report that considered the social, ethical, legal and religious implications of IVF fertility treatments. It recommended that IVF surrogacy be allowed on the basis of the principles of privacy and autonomy, but that surrogacy arrangements be regulated via prior approval from a statutory body. Although the report had envisaged altruistic unpaid surrogacy, the subsequent legislation has allowed for commercial arrangements.
4.71 Since the law was passed in 1996, the statutory committee, established under the legislation, has approved 89 of 109 applications. By 2002, 30 children had been born. There are now also comprehensive practice guidelines prepared by the Committee to complement the legislation.
4.72 Commissioning parents can acquire legal parental status by obtaining a parentage order shortly after the child’s birth. The baby is handed over to the intending parents in the presence of a child welfare officer as soon as possible after birth, although the officer becomes the child’s sole legal guardian until a parentage order is made. The order must be applied for by the commissioning parents within seven days of birth. The Court will make the order on a report from the welfare officer, unless the order would be inconsistent with the welfare of the child. The birth mother can challenge the order applied for on the basis that it is not consistent with the child’s welfare. The parentage order is registered in a special register, which records the name of the child before and after the order, the date and place of birth, and the name of the birth mother and intended parents. The child has access to the register upon reaching maturity.
Regulation in US jurisdictions
4.73 A system of prior approval operates in New Hampshire and Virginia where a judge must approve a surrogacy agreement before it is entered into by the parties. The approval becomes a judicial parental order 72 hours after birth in New Hampshire and 180 days after the surrogate mother’s last attempt at artificial conception in Virginia. During the prescribed period, the surrogate mother can terminate the contract in which case she and her husband become the child’s legal parents. Once an order is made the parental rights of the surrogate mother and her partner are automatically terminated and vested in the commissioning couple.
4.74 In Florida, the courts will make an order prior to the birth of the child that the commissioning parents will be the child’s legal parents from three days after birth, so long as the mother has not challenged the order during that time.
Requirements in US jurisdictions and Israel
4.75 Many of the requirements for pre-approved surrogacy agreements in Israel and in the US jurisdictions that lead to parental orders are contained in statute or regulation. Some of the typical requirements are:
• age – parties must be over or under a certain age;
• marital status – parties must be married (or in the case of the birth mother must not be married);
• fertility status – the commissioning mother must be medically infertile or unable to gestate a child;
• medical requirements – to reduce the risk to the mother and child;
• genetic link – commissioning parents may be required to have a genetic link with the child or be prohibited from having one;
• religious beliefs – parties must share the same religious beliefs.
The United Kingdom
4.76 The United Kingdom does not regulate surrogacy but does have some legal provisions governing the type of arrangements that can be made. The Surrogacy Arrangements Act 1985 bans commercial surrogacy and makes it illegal to recruit mothers or to advertise or negotiate contracts on a commercial basis. The Human Fertilisation and Embryology Act 1990 (HFEA) makes surrogacy agreements unenforceable. Non-profit contracts are permitted whether arranged privately or through a not-for-profit organisation.
4.77 The HFEA sets requirements for infertility treatment centres, including places where surrogacy arrangements may be made. Centres must be licensed and must take account of the welfare of the child. The HFEA Code of Practice sets out matters that are considered relevant to the child’s welfare. These are:
• the commitment of the commissioning couple and family to having and bringing up the child;
• the ages and medical history of the couple and their family;
• the needs of the child or children born as a result of the treatment (including their need for a father);
• the risk of harm to any child including the risk of inherited disorders, problems during pregnancy, concerns regarding neglect or abuse; and
• the effect of a new baby on any existing child of the family.
4.78 Apart from these conditions for medically assisted surrogacy arrangements, parties are free to set the terms and conditions of their contracts or arrangements without state supervision. Section 30 of the Act allows them to apply to the Court for a parental order.
4.79 The HFEA also makes legal provision enabling the transfer of parental status in surrogacy. Provided that the commissioning parents are married, they can obtain a “parental order” that provides them with parental rights and responsibilities. The order can only be obtained with the birth mother’s consent, which cannot be given until six weeks after birth.
4.80 After the order is made, two birth certificates are issued: one on which the child is registered in the name of the commissioning parents and that is publicly accessible, and the other that contains the name of the birth mother, which is held in private and can be accessed by the child at the age of majority (18 years in the United Kingdom).
4.81 The parental order does not extinguish the surrogate mother’s legal responsibilities, but rather gives additional rights to the commissioning parents. Academic writers point out that this leaves open the possibility of the surrogate mother applying for access at a later date. The alternative route taken by commissioning parents to obtain legal status is by means of adoption. Under adoption law, a birth mother’s consent can be dispensed with on the grounds that it is being unreasonably withheld but there is no such provision in relation to parental orders. On this basis, adoption in the United Kingdom provides greater protection from subsequent claims by the surrogate mother for the commissioning parents in assuming care for the child.
4.82 The 1998 Brazier Committee, which reviewed the operation of the surrogacy provisions in the United Kingdom, recommended that commissioning couples not have access to the fast-track parental order unless they had proved:
• they complied with the payments requirement;
• at least one of them was proven to be the genetic parent of the child via DNA parentage testing; and
• neither of the parents had a criminal record of child abuse or related criminal conduct.
Incidence of surrogacy overseas
4.83 There are no reliable figures on the incidence of surrogacy overseas, mainly because arrangements can be conducted privately, even in countries where surrogacy is prohibited. However, it has been estimated by the non-government organisation Childlessness Overcome Through Surrogacy (COTS) in the United Kingdom that 200 children have been born of surrogacy over the past 15 years. In Israel, there have been 30 births since 1996 and “many thousands” are reported as having been born in the United States.
4.84 Ten years ago the Ministerial Committee on Assisted Reproductive Technologies commented on the need for proper methods of protection and ongoing monitoring of surrogacy in New Zealand. In relation to parental status, it considered that the law functioned satisfactorily for the few cases that arise, but that if surrogacy were to become a commonly accepted practice some review of the law might be necessary. Since then, NECAHR has issued guidelines approving and regulating IVF compassionate surrogacy arrangements.
4.85 There is clear evidence that a number of children have been born as a result of private surrogacy arrangements in this country. Even if the numbers are small, there should be an appropriate mechanism for the reallocation of parental status, particularly given that the Government has never prohibited surrogacy and, under the HART Bill, intends to prohibit only commercial surrogacy. The surrogate mother and her husband or partner, conversely, are placed in the unfavourable position of being the legal parents of a child whom they never intended to raise or assume responsibility for. The mismatch between legal responsibility and intended and actual responsibility inevitably creates uncertainty and has the potential to place significant stress upon the caregiving adults in the child’s family at a time when the child needs stability and calm.
4.86 For options for conferring and recording parental status in surrogacy see chapter 7.