6. Agreements

6.1 This chapter reviews the current legal situation regarding agreements that allocate responsibility for the care of children and considers their use in situations where adults are arranging for the conception of a child outside the traditional two-parent family.

Current law regarding agreements

6.2 Agreements are used by parents after separation to guide their responsibilities in the care of their children when they are no longer living together. Children benefit from collaborative parenting and are damaged by a bitter or prolonged contest over their care.

6.3 New Zealand’s Family Court system strongly encourages families to reach their own agreements,[292] although the Court will only enforce these agreements if they promote the welfare of the child.[293] Furthermore, agreements between a parent and a non-parent (for example, a grandparent, actual carer, step-parent or matua whängai) or between carers who are not parents of the child are neither valid nor enforceable.[294]

6.4 Parents or others wanting to enforce an agreement must obtain a guardianship, custody or access order from the Family Court. It is open to the parents to give an agreement legal force by obtaining a consent order, but the Court can refuse to make orders if it is not satisfied they are in the best interests of the child. It was said in Wise v Wise[295] that “[w]hile agreement between the parents must always be encouraged, the Court’s first duty is to the child”. The agreement may carry some weight with the Court on a custody or access application but the Court will make an independent assessment of the child’s welfare.

6.5 It should be noted also that:

• a warrant cannot be issued to enforce custody or access rights conferred by agreement;[296]

• a custody or access agreement does not prevent the child being removed from New Zealand;[297]

• the criminal offence of hindering or preventing access can be committed only where there is an order in force.[298]

Care of Children Bill 2003 provision for agreements

6.6 The Care of Children Bill, which, if enacted, would replace the Guardianship Act 1968, contains new provisions about agreements and their enforceability. Clause 41 provides that agreements between parents or guardians cannot be enforced, although some or all of the terms of the agreement that relate to a child’s upbringing, day-to-day care or contact can be embodied in a court order and enforced accordingly.[299] Clause 41 does not deal with agreements between people other than parents or guardians.

6.7 Clause 42 of the Care of Children Bill deals with agreements between parents and gamete donors regarding a donor-conceived child’s upbringing, day-to-day care or contact.[300] It states that such agreements are not enforceable unless their terms are embodied in a court order with the consent of all parties.[301] Where the parties to an agreement that has been embodied in a court order cannot agree about the role of a donor in the upbringing of the child, any party can apply to the Court for its direction and the dispute will be resolved on the basis of the child’s welfare and best interests.[302]

6.8 It has been questioned whether the Care of Children Bill goes far enough.[303] The clauses that deal with agreements between parents are weaker than those in the Guardianship Act 1968 which state that agreements between parents are “valid” but shall not be enforced where the Court considers enforcement is not in accordance with the child’s welfare. Agreements that have no force in law, unless they are incorporated in a court order, achieve little and provide a strong incentive for parents and others to initiate court proceedings and obtain orders to confirm any agreement reached. Clause 42 applies only to donors and recipients and not to their partners or members of their extended families.

Parenting plans: Australian Commonwealth

6.9 Under Australian Commonwealth law, agreements relating to children (known as parenting plans) can be registered in the Family Court and, upon registration, have the effect of a court order. They must deal with at least one aspect of parental responsibility (for example, residence or contact) but may also deal with other matters.[304] Although a parenting plan will usually be agreed upon between the parents of a child, other persons may also be parties. Before the Court will register the agreement, it must be satisfied that registration is in the best interests of the child. Information must be provided to enable the Court to make a judgment on this issue.[305] The Court can set aside a parenting plan where it is no longer in the best interests of the child.[306]

Parental responsibility agreements: United Kingdom

6.10 The United Kingdom courts recognise parental responsibility agreements entered into between unmarried parents or between the parent and step-parent of a child.[307] Parental responsibility agreements must be in prescribed form[308] and confer parental responsibility on the unmarried father or step-parent.

Agreements in donor gamete conception and surrogacy

6.11 Because forms of parenting outside the traditional mother/father model have become more common, and because a child may have social parents who are not the child’s genetic parents, it is vital that there be a legal framework that reallocates the responsibilities and rights of those involved in the child’s conception, birth and ongoing care and that resolves disputes.

Donor gamete conception

6.12 Agreements have the potential to play an important stabilising and clarifying role in the parenting of a child conceived by donor gametes. All interested parties should be encouraged to reach an agreement prior to the child’s conception. Even in cases where children are conceived via unidentified sperm donation there is room for some form of agreement, such as for the exchange of photographs and other information. Clinics currently assist parties who want to make arrangements for the sharing of information or contact with the child.

6.13 Where the child is conceived using gametes from a known donor, the case for agreements is even stronger. In Re Patrick[309] the absence of any pre-conception agreement made it more difficult for the Court to determine the issue, because it had to hear lengthy evidence and decide issues of credibility in order to determine the parties’ intentions as to the donor father’s involvement. In saying this, the presence of an agreement will not necessarily resolve all disputes, as the facts of P v K show.[310]

Surrogacy

6.14 Surrogacy inevitably involves a relationship between the parties both prior to and between the conception and birth of the child. There are greater risks of a relationship breakdown than with donor gamete conception. Although egg donation is a physically invasive and uncomfortable procedure, and must be done close to the time of egg transfer,[311] the genetic mother’s actual physical involvement ceases with the retrieval of her eggs. A sperm donor’s role, though vital, is brief and non-invasive.

6.15 A surrogate mother, on the other hand, will assume the risks, limitations and discomfort of a nine month pregnancy and childbirth. She faces possible medical complications and the risk of miscarriage with resulting emotional strain. Many changes can occur over the period between conception and birth. The mother or the commissioning parents may have a change of heart. The pregnancy might not carry to term or the child might be still-born. There may be multiple births or the child may have a disability. Events can occur during the pregnancy that cause the parties to review their situation (for example, the commissioning parents may separate or decide not to continue with the arrangement). There are many matters upon which discussion and agreement would be useful, including practical issues such as payment of medical expenses.[312]

6.16 The experience of those people consulted by the Law Commission is that pre-conception arrangements in surrogacy have worked well. Some have drawn up written agreements (knowing that they will be unenforceable) while others have relied on verbal arrangements and mutual trust. In these cases everything has gone according to plan and there has been ongoing contact between the families over a period of years. However, things can go wrong, as is evident from high-profile cases overseas.

Transfer of parental status itself by agreement

6.17 Agreements that purport to transfer parental status from a parent to non-parent have never been held as binding under common law.[313] Such agreements were deemed to be contrary to public policy and unenforceable by either party.[314] The policy rationale was that to allow such transactions would be to treat children as property. If parental status could be transferred by agreement, children’s security and sense of identity could be placed in jeopardy. The legislature, however, has created two situations where full parental status can be reallocated: by court order (adoption) or by a statutory deeming provision (donor gamete conception).[315] In adoption there is an assessment of the suitability of the adults to be substitute parents before the order is made. In the latter there is no vetting. Should the law allow the transfer of parental status by agreement in other situations and, if so, what protections would be required?

Options for strengthening the legal status of agreements

6.18 There are various ways in which the law could provide a stronger legal framework than currently exists for parties to agreements in donor gamete conception and surrogacy situations.

6.19 Agreements dealing with the upbringing, day-to-day care, or contact with a child could be enforceable provided the Court is satisfied that enforcement of the agreement will be in the best interests of the child.

6.20 Agreements could be registered in court thereby creating a rebuttable presumption in any subsequent proceedings that they be enforced according to their terms, provided the parties have had independent and joint counselling and separate legal advice. Enforcement would be conditional on an abbreviated hearing in which the best interests of the child are evaluated.

6.21 The legislation could provide for counselling or mediation to be available to resolve any disagreements that may arise in relation to the interpretation of, or compliance with, the agreement,[316] or for the Family Court to be given the power to give directions and to make such orders as it thinks proper in relation to the matters in contention.[317]

6.22 Agreements could include provisions designating who will have the legal responsibilities and rights of parenthood, as well as what will be the day-to-day and long-term care arrangements and contact with the child.

6.23 Agreements could define the rights and responsibilities of a wider group of persons than just the intended social parents, the surrogate mother and any gamete donors. Some people involved in donor gamete conception or surrogacy who currently have no standing in relation to a child’s care or upbringing might be given some role in the child’s life by agreement. These include:[318]

• the partner of a gamete donor;

• the parents or siblings or other relatives of a gamete donor (the genetic grandparents, aunts, uncles, brothers or sisters of the child);

• members of the child’s whänau;

• the children of a surrogate mother (who may be full or half siblings of the child).

6.24 There might be difficulties if all clinic gamete donation procedures were required to be subject to a pre-conception agreement. Currently, gamete donors sign a form held by the clinic agreeing to waive all parental responsibilities and rights in relation to any child conceived from their gametes. Recipients use the gametes on that basis. The law has traditionally refused to enforce attempts to transfer parental status and the legal validity of these waivers remains to be tested.

6.25 There may be practical difficulties in requiring donors and recipients to meet and sign an agreement. The sperm donation may have been made years previously. The parties may live far apart. There may be a reluctance for the recipient woman to meet a potential sperm donor when the treatment may not result in conception or the woman may discontinue treatment. In those cases, a great deal of time and consideration might be spent in negotiating an agreement that never takes effect. The recipient and her partner might be hesitant to meet with the donor face-to-face out of anxiety that the donor might not approve of them as potential parents. Either party might see a meeting as an unjustified invasion of their privacy.

Parenting plans in adoption: Law Commission recommendations

6.26 When considering the potential for agreements in relation to gamete donation and surrogacy, the proposals in the Law Commission report on adoption law reform are informative. The report proposed that a parenting plan be drawn up between the birth parents that set out their agreement on such matters as the sharing of information and photographs, contact between the child and the birth parents and other family members and inheritance rights.[319] The Commission found the arguments for and against making a parenting plan legally enforceable evenly balanced, but eventually recommended that, in the interests of the stability of the adoptive family, there should be no access to the courts to enforce a plan.[320] The Commission recommended that mediation services be available to resolve any disputes.[321] Before a parenting plan could be registered, the Court would have to be satisfied that the parties had been given independent legal advice or, alternatively, that the plan had been developed after consultation with a family and child counsellor. The lawyer or counsellor would have to give written confirmation of this fact.[322]

6.27 See chapter 7 for options for conferring and recording parental status in donor gamete conception and surrogacy.

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