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• Appendix Footnote

Endnotes

[1] See Common terms.

[2] Note that when a child conceived from donor sperm is born to a single woman, the law does not extinguish the genetic parentage of the male donor as it does in the case of married women. He retains his status as a natural father so as to maintain the two-parent model (although all his responsibilities and rights as a father are removed). However, note the exception in adoption laws that allows a single man or woman to adopt a child _ curiously, the child is deemed to have been born to that person in lawful wedlock: s 16(2) Adoption Act 1955.

[3] Until 1969, children born outside marriage were deemed "illegitimate" and suffered social stigma and legal disadvantages. Marriage was the only acceptable form of cohabitation and having a family. Between 1981 and 1991 there was an 84 per cent increase in adults aged between 20 and 39 years living in a de facto relationship. By 1996, the proportion of all New Zealand children born from a de facto union was 13.5 per cent. Many children are living in blended families where a step-parent has a role in their care. This is as a result of the breakdown of their parent's relationship and repartnering by their caregiving parent. In 1996, 36.5 per cent of all marriages were remarriages for at least one partner, compared with 18.7 per cent in 1952.

Families in which the parents are of the same sex have become more visible and their numbers have increased 100 per cent between the last two census dates. The number of same-sex couples with children in 1996 was 684 while in 2001 it was 1356. Over 4000 grandparents had assumed the role of primary parent to their grandchildren in 2001.

One-parent families are now a major family model. In 2001, just under one-fifth of New Zealand families (18.9 per cent) contained only one parent and 75 per cent contained dependent children. Just over four-fifths of one-parent families had a female parent. This was an increase from five years ago where 17.2 per cent of families were headed by one parent.

[4] The paper does not address foster parenting, step-parenting or whängai situations where arrange-ments are made after birth for the child to be cared for by persons other than a genetic parent.

[5] It is open to adoptive parents to request that the words "adoptive parent(s)" be noted on the child's birth certificate. A little-known provision also allows adoptees, from the age of 18 years, to make such a request, although this notation is seldom requested in practice: s 24(3) Births, Deaths, and Marriages Registration Act 1995.

[6] Mäori customary law and practice, as it relates to the family, has remained outside the mains-tream laws of this country: for a detailed account see D Hall and J Metge "Kua Tutu Te Puehu, Kia Mau: Maori Aspirations and Family Law" in Henaghan and Atkin (eds) Family Law Policy in New Zealand (11 ed, LexisNexis, Wellington, 2003) 53.

[7] See P v K [artificial insemination by donor] [2003] 2 NZLR 787, (2002) 22 FRNZ 677; Re Patrick: An application concerning contact (2002) FLC 93-096.

[8] J Bronowski in The Ascent of Man (BBC, London, 1973) saw the willingness of humans to care for orphaned or abandoned children as one of the first signs of civilisation.

[9] A person may also be a legal parent without being genetically related to a child if the presumption of parenthood operates and has not been displaced: s 5 Status of Children Act 1969.

[10] Guardianship also terminates if the child marries: s 21(1) Guardianship Act 1968.

[11] Clause 27(1) Care of Children Bill. Under the Bill, guardianship also ends if the child lives with a de facto partner.

[12] This is derived from the Roman law maxim mater semper certa est and is based on the common law principle that motherhood is proved demonstrably by parturition: see The Ampthill Peerage [1977] AC 547, 577 (HL).

[13] It used to be said that while motherhood was a fact, fatherhood was a presumption because even though sexual intercourse with the mother could be proven, this in itself was not proof of a child's paternity. With DNA parentage testing it is usually now possible to prove or disprove paternity with a high degree of certainty.

[14] See paragraphs 2.14_2.17.

[15] See paragraphs 2.27_2.40.

[16] Whether by death or by court order.

[17] The presumption serves a practical purpose in that it lightens the burden on the executors or administrators of a dead person's estate who might otherwise have to undertake extensive inquiries into parentage.

[18] The issue turns on the interpretation of s 5 Status of Children Act 1969 and ss 1 and 2 Status of Children Amendment Act 1987.

[19] Family Law in New Zealand (11 ed, LexisNexis, Wellington, 2003) vol 2, para 6.504.

[20] The Laws of New Zealand (Butterworths of New Zealand, Wellington, 2001) "Husband and Wife/De Facto Relationships/Domestic Arrangements/Children", para 128 fn.

[21] Form 2 Births, Deaths, and Marriages (Prescribed Particulars and Forms) Regulations 1995.

[22] Because the presumption applies only to children born within marriage or within 10 months of the marriage being dissolved.

[23] For example s 8 Status of Children Act 1974 (Tas).

[24] Sections 5(1), 7(1), 9(1), 11(1), 13(1) and 15(1) Status of Children Amendment Act 1987.

[25] Sections 5(2), 7(2), 9(2), 11(2), 13(2) and 15(2) Status of Children Amendment Act 1987.

[26] Sections 9(3) and 13(3) Status of Children Amendment Act 1987.

[27] For further discussion on the deeming provisions in the Status of Children Amendment Act 1987 see chapter 3, paras 3.22_3.33.

[28] Sections 14 and 17 Status of Children Act 1969 to be inserted by clause 167 of the Care of Children Bill 2003.

[29] Section 20 Status of Children Act 1969 to be inserted by clause 167 of the Care of Children Bill 2003.

[30] Section 16(2) Adoption Act 1955.

[31] Unless the Court dispenses with consent under s 8 or finds it expedient to dispense with an unmarried father's consent if he is not the child's guardian under s 7(3)(a) and (b) Adoption Act 1955.

[32] This topic is discussed by the Law Commission in Adoption and Its Alternatives: A different approach and a new framework (NZLC R65, Wellington, 2000) paras 183_190.

[33] The Adoption Act 1955 was enacted in very different social circumstances. See Law Commission above n 32, paras 22_27.

[34] Law Commission Mäori Custom and Values in New Zealand Law (nzlc sp9, Wellington, 2001) para 234, referring to a paper delivered by Hirini Moko Mead at the 1990 Adoption Conference, Victoria University of Wellington, Tamaiti Whängai: The Adopted Child: Mäori Customary Practices.

[35] Mikaere, Ririnui and Pitama "Guardianship, Custody and Access: Maori Perspectives and Experiences" a paper a for Ministry of Justice (August 2002).

[36] D Durie-Hall and J Metge "Ka tu te Puehu, Kia Mau: Mäori Aspirations and Family Law" in M Henaghan and W Atkin (eds) Family Law Policy in New Zealand (Oxford University Press, Auckland, 1992) 54, 63.

[37] Law Commission, above n 34, para 236.

[38] Genealogy.

[39] The centrality of family relationships to the Mäori way of life.

[40] Law Commission above n 34, para 154.

[41] Amiria Stirling reported that as a little girl her grandmother asked her parents if they could take her because she was lonely and her mother, who had other children, agreed. Cited in above n 35, taken from A Stirling and A Salmond Amiria: The Lifestory of a Maori Woman (AH and AW Reed, Wellington, 1976) 3.

[42] Mikaere, above n 35, reports observations of Tamaiti Cairns who said he believed that his grandparents could see that because the first four children were born rapidly, many more were to follow. They took steps to ensure his parents did not become overstretched with the weight of childrearing responsibilities by giving him at one week old to his adoptive parents.

[43] Durie-Hall and Metge, above n 36.

[44] Law Commission, above n 32, para 182.

[45] Except where statutory parenthood is conferred by adoption or by deeming provision. See paras 2.14_2.17 above.

[46] This point was emphasised by the majority of the Court of Appeal in D v S [relocation] (2001) 21 FRNZ 331, [2002] NZFLR 116 [28].

[47] See Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, 185; [1985] 3 All ER 402 (HL); D v S [relocation] (2002) 21 FRNZ 331, [2002] NZFLR 161 paras [29] and [31]; L v A (unreported) 20/11/03, Baragwanath J, High Court Auckland CIV2003-404-4849 para [9].

[48] D v S [relocation], above n 47, para [29].

[49] Gillick v West Norfolk and Wisbech Area Health Authority [1966] 1 AC 112, 173, 185; [1985] 3 All ER 402 (HL).

[50] Under clause 17(3) Care of Children Bill 2003 it is proposed to extend this to men who were in a de facto relationship with the child's mother at any time during the period between conception and birth.

[51] Section 10(2) Guardianship Act 1968.

[52] Section 16(2)(a) Adoption Act 1955.

[53] Sections 5(1)(a), 7(1)(a), 9(1)(a), 11(1)(a), 13(1)(a) and 15(1)(a) Status of Children Amendment Act 1987.

[54] Section 6(2) Guardianship Act 1968; compare clause 17(3) Care of Children Bill 2003.

[55] Section 3(1) Adoption Act 1955 allows a single person to apply for an adoption order. Section 16(2)(b) severs the child's relationship with the birth parents.

[56] Section 8(1) Guardianship Act 1968.

[57] Section 23(1) Guardianship Act; clauses 21_24 Care of Children Bill 2003 will provide a simplified means by which a step-parent can be appointed a guardian.

[58] Section 10(1) Guardianship Act 1968.

[59] See the definition of "guardianship" in s 3 Guardianship Act 1968. This is so even if a custody order has been made in favour of one parent: see D v S [relocation] above n 47, para [28]; R v C 23/8/02, Judge Inglis QC, Family Court, Palmerston North FP054/327/97.

[60] Section 13(1) Guardianship Act 1968.

[61] Section 23(2) Guardianship Act 1968.

[62] Cause 15(1)(a) Care of Children Bill 2003.

[63] Clause 15(2) Care of Children Bill 2003.

[64] Definition in s 3 Guardianship Act 1968.

[65] D v S [relocation] above n 47, para [28].

[66] M v Y [1994] 1 NZLR 527, [1994] NZFLR 1 (CA); R v R (1994) 12 FRNZ 211 (HC).

[67] L v A ( unreported) 20/11/03, Baragwanath J, High Court Auckland CIV2003-404-4849, para [48].

[68] Clause 44(1)(a) Care of Children Bill 2003.

[69] Clause 44(1)(b) Care of Children Bill 2003.

[70] Under s 6 Guardianship Act 1968, a man is only a guardian in law if he is married to or living with the child's mother in a de facto relationship at the time of the child's birth. The Care of Children Bill 2003 will extend this provision to men who were living with the mother at any time during the period between conception and birth.

[71] The Family Court has developed a set of rules by which the expediency of requiring the father's consent can be assessed. The father's consent will usually be required if (i) he has been granted or has applied for a guardianship order; (ii) a declaration of paternity or paternity order has been made naming him as the father; or (iii) a maintenance order has been made against him or he has contributed towards the child's maintenance.

[72] See K v B 24/8/90, (1990) 6 FRNZ 604, [1991] NZFLR 168; C v M (unreported) 12/11/93, Judge Inglis QC, Family Court Wanganui 083/086/92; McDermott v Kena (2001) 21 FRNZ 168, [2001] NZFLR 954; B v G (unreported) 12/3/97, Judge Grace, Family Court Nelson FP 042/227/95; G v B (unreported) 3/2/98, Judge von Dadelszen, Family Court Hastings FP 366/96 compare Guardianship of B (1986) 4 NZFLR 306; Parsotam v Lyall (unreported) 25/3/03, Judge Moss, Family Court Wellington FP085/430/01.

[73] Section 11(1) Guardianship Act 1968.

[74] Section 15(2) Guardianship Act 1968.

[75] Section 7 of the Child Support Act 1991 sets out the classes of persons who fall within the definition of "parent" under the Act. These include persons who are registered as the parent on the child's birth certificate and any person in respect of whom a paternity order or declaration is made: s 7(a), (d) and (f).

[76] Clause 17(3) Care of Children Bill 2003 makes a father a guardian if he was married to or living with the mother as a de facto partner at any time during the period from conception until the child was born.

[77] Clause 18 Care of Children Bill 2003.

[78] Clause 17(4) Care of Children Bill 2003.

[79] See s 27(1) New Zealand Bill of Rights Act 1990.

[80] For further discussion see chapter 5.

[136] Definition taken from the report of the Ministerial Committee on Assisted Reproductive Technologies, Assisted Human Reproduction: Navigating our Future (Wellington, July, 1994) para 7.2.

[137] In the first two examples above, the surrogate mother is the genetic and gestational mother of the child. Some commentators have observed that it is the commissioning mother who should be termed the "surrogate" because it is she who has no genetic or gestational connection with the child but will assume the role of primary caregiver from birth.

[138] Clauses 11 and 12 HART Bill to be inserted by Supplementary Order Paper 80/2003.

[139] This is because surrogacy using IVF requires medical intervention and the National Ethics Committee guidelines have always required that one commissioning parent in any surrogacy arrangement be genetically related to the child. See appendix 7 for a copy of the guidelines.

[140] Private arrangements that involve a surrogate mother's egg and donor sperm are similar to adoption, insofar as they result in the child being raised after birth by a genetically unrelated couple (the commissioning parents).

[141] Robert Edwards Life Before Birth _ Reflections on the Embryo Debate (Century Hutchinson, London, 1989).

[142] Robert Edelmann "Psychological Assessment in Surrogate Motherhood" in R Cook, S Day Sclater and F Kaganas (eds) Surrogate Motherhood: International Perspectives (Hart Publishing, Portland (Oregon), 2003) 146.

[143] Edelmann, above n 142.

[144] A full history of the development of surrogacy policy in New Zealand is given by Ken Daniels "The Policy and Practice of Surrogacy in New Zealand" in R Cook, S Day Sclater and

F Kaganas (eds) Surrogate Motherhood: International Perspectives (Hart Publishing, Portland (Oregon), 2003) 55.

[145] Refers to a situation where a friend or sister offers to carry a baby for an infertile couple and where the birth mother is more likely to be part of the child's extended family and life. Ministerial Committee on Assisted Reproductive Technologies, above n 136, 112.

[146] The Committee commented at page 112 of the report: "We have no objection in principle to IVF compassionate surrogacy. In particular cases, for example, where the parties appear not to appreciate what IVF compassionate surrogacy involves or where there is doubt about the genuineness of consent, it would be appropriate to refuse to proceed. This however is a matter of looking at each case on an individual basis."

[147] Information from NECAHR Annual Report to Minister of Health for year ending December 31/12/02.

[148] The current clinic guidelines are set out in full in appendix 7.

[149] Guidelines, para 2.73.

[150] Guidelines, para 2.74.

[151] Assurances that legal advice and counselling have been given must be made in a report to NECAHR.

[152] The Committee is based in Australia but all New Zealand clinics are members.

[153] Information obtained from the Secretary of NECAHR, Jenny Hawes, on 20 February 2004.

[154] The surrogate mother's egg and the commissioning father's sperm is used in the conception.

[155] Re Adoption of P [1990] NZFLR 385 McAloon J; Re Adoption of G (3 February 1993) District Court, Invercargill Registry, Adopt 6/92 Neal J; Re H (13 August 2003) Family Court, Wanganui Registry FM-2003-034-17 Callinicos J.

[156] Articles in Dominion Sunday Times (21 April 1991); Dominion Sunday Times (2 June 1991); More (December 1990) 30; New Zealand Women's Weekly (19 March 1990) 42; New Zealand Women's Weekly (21 May 1991) 36; New Zealand Women's Weekly (27 May 1991) 36; New Zealand Women's Weekly (17 May 1993) 24.

[157] <http://www.surromomsonline.com> (last accessed 3 March 2004).

[158] Sections 9(3), 13(3) and 15(3) Status of Children Amendment Act 1987.

[159] If the child was conceived by way of natural intercourse, the surrogate mother's husband is presumed to be the child's father by operation of s 5 Status of Children Act 1969. If the child is conceived by way of self-insemination or with medical assistance using donor sperm, the Status of Children Amendment Act 1987 operates to deem the surrogate mother's husband or partner (if she has one) the legal father for all purposes.

[160] Under s 6 Guardianship Act 1968, a father is only a guardian if he is married to or living with the child's mother when the child is born. This is set to change under the Care of Children Bill 2003, which will see a father become an automatic guardian if he is registered as the father on the child's birth certificate with the legal mother's consent, or if he is married to or living with the mother at any time during the period between conception and birth.

[161] The commissioning parents may make application for guardianship but that does not give them the status as a parent _ just the rights and responsibilities of parenthood.

[162] They would need to apply for a guardianship order from the Family Court: but note that under clause 18 Care of Children Bill 2003 a father will become an automatic guardian of his child if his particulars are registered on the child's birth certificate. It is unclear whether this provision will apply retrospectively.

[163] The nature of the legislation concerns issues to do with human assisted reproduction, not parentage.

[164] Re Adoption of P above n 155.

[165] They had advertised in the newspaper "Nelson couple desperate for a child" and paid the surrogate mother $375.00 per week for 40 weeks (a total of $15 000).

[166] Unreported (3 February 1993) DC Invercargill Adopt 6/92 Neal J.

[167] The Court made adoption orders on the basis that: the parents were fit and proper people to be parents; the adoption would be consistent with the best interests of the child; the marriage had proved strong; their financial situation had stabilised; and that they were generally well-meaning and honest during their interview with the social worker. The Court concluded that any untruths were likely to have been as a result of stress and motivated by a desire to protect the surrogate mother, that the money paid to the surrogate was intended for the purposes of surrogacy not adoption, and the parents had not intended to adopt the child when they took it immediately after birth.

[168] Unreported (13 August 2003) FC Wanganui FAM-2003-034-17.

[169] M Brazier, S Golombok and A Campbell above n 135.

[170] Clause 12(4) permits payment of counselling, legal and some medical expenses.

[171] Law Commission, above n 32, paras 543_579.

[172] Law Commission, above n 32.

[173] It is likely that private surrogacy continues to take place in jurisdictions where it is prohibited.

[174] Commercial surrogacy is prohibited in the United Kingdom but parties are free to enter into non-commercial arrangements where "payment of expenses" is permitted.

[175] The Committee found that "expenses" had at times been generously interpreted to circumvent the ban on commercial surrogacy.

[176] R Cook, S Day Sclater and F Kaganas (eds) "Introduction" in their book Surrogate Motherhood: International Perspectives (Hart Publishing, Portland (Oregon), 2003) p 10 and fn 20.

[177] B P Aigen Motivations of Surrogate Mothers: Parenthood, altruism and self actualisation (a three year study) (The American Surrogacy Centre, 1996). The study was sponsored by the American Surrogacy Centre. <http://www.surrogacy.com/psychres/article/motivat.html> (last accessed 27 February 2004).

[178] E Blyth "I wanted to be interesting. I wanted to be able to say `I've done something interesting with my life': Interviews with surrogate mothers in Britain" (1994) 12 Journal of Reproductive and Infant Psychology 189_98.

[179] The one who did not said that she had an emerging realisation as the pregnancy progressed that the commissioning parents were not people she would entrust with the care of a baby.

[180] The British Medical Association third review of surrogacy in 1995 concluded in its report that "although little evidence is available, the risk of serious psychological harm to the child is considered low if open acknowledgment is made from an early stage in the child's life". See Changing Conceptions of Motherhood: A Report on Surrogacy (British Medical Association, London, 1995).

[181] See Eric Blyth and Claire Potter "Paying for it? Surrogacy, Market Forces, Assisted Conception" in R Cook, S Day Sclater and F Kaganas (eds), above n 176.

[182] See Re Adoption of P, above n 155, para 7.39; Re Adoption of G above n 155, para 7.40.

[183] Ministerial Committee on Assisted Reproductive Technologies, above n 136, 109.

[184] Ministerial Committee on Assisted Reproductive Technologies, above n 136, 118.

[185] Although the child born of surrogacy is almost always related genetically to one or both the commissioning parents and, as was demonstrated by the Commission's interviews, the arrangement can lead to a close relationship forming between the surrogate mother and her family and the family of the commissioning parents.

[186] However, in all three of the private surrogacy arrangements discussed with Commission staff the child knows or will know the birth mother.

[187] Although this will be illegal under the HART Bill.

[188] See paragraphs 4.11_4.14 of this chapter.

[189] New Zealand was in this category until the HART Bill.

[190] A few jurisdictions such as Arizona prohibit all forms of surrogacy see: Ariz. Rev. Stat. Ann. 25-218(A) 1995. Others proscribe only commercial surrogacy: for example, Ky. Rev. Stat. Ann. 199.590 (4) (Baldwin (1996)); La. Rev. Stat. Ann. 31-8-2-1 (West (1997)); Mich. Comp. Laws. Ann. 722.859 (West (1993)); NY Dom. Rel. 123 (McKinney Supp. 1997_98).

[191] Surrogacy is illegal in Austria, Germany, Sweden, Norway and Italy. Commercial surrogacy is prohibited in France, Denmark and the Netherlands. In Finland, Greece and Ireland surrogacy takes place without legislative provision. Source: European Society for Human Reproduction and Embryology "World's first study on surrogacy reveals high quality parenting and no problems" (1 July 2002). See <http://www.eurekalert.org/pub_releases/2002-07/esfh-wfs062902.phb> (last accessed 1 March 2004).

[192] Surrogacy Contracts Act 1993 (Tas); Surrogate Parenthood Act 1988 (Qld).

[193] If the HART Bill is passed in its current form New Zealand will be in this category.

[194] Re A and B (2000) 26 Fam LR 317; [2000] NSWSC 640 Bryson J.

[195] Surrogate Motherhood Agreements (Approval of Agreement and Status of Newborn) Law 5756_1996 (Israel); Florida Stat. Ann 742.16 (West 1996); New Hampshire Rev Stat. Ann 168-B; Va Code Ann 20_185.

[196] See Elly Temen "Knowing the Surrogate Body in Israel" in R Cook, S Day Sclater and F Kaganas (eds), above n 176, 158, 260_279.

[197] Radhika Rao "Surrogacy Law in the United States: The Outcome of Ambivalence" in R Cook, S Day Sclater and F Kaganas (eds) above n 176, 23, 29.

[198] Although some are set in Israel by the statutory committee that approves the surrogacy arrangements.

[199] For example, in Israel a commissioning mother must be younger than 48 years and a commissioning father younger than 59 years. Surrogate mothers must be older than 18 years and 21 years in Florida and New Hampshire respectively. In Israel, surrogate mothers must be older than 22 but younger than 40 years of age.

[200] As is the case in Florida, New Hampshire and Israel.

[201] There may also be a requirement for the surrogate to have given birth at least once, to have had no more than one caesarean section or had no more than a certain number of previous births. Florida, New Hampshire, Virginia and Israel all have laws covering these areas.

[202] For example, there may be a requirement that only full (IVF) surrogacy be used or that relatives of the intending parents be prohibited from acting as surrogates, as occurs in Israel.

[203] Section 36 Human Fertilisation and Embryology Act 1990 (UK).

[204] This requirement has generated some controversy and is likely to be removed.

[205] Section 30 Human Fertilisation and Embryology Act 1990 (UK).

[206] The main organisation representing surrogate mothers in Britain, COTS (Childlessness Overcome Through Surrogacy), criticises bureaucratic aspects of the processing of s 30 applications but still advises intending parents to follow this route rather than adoption. See Gene Dodd "Surrogacy and the Law in Britain: Users' Perspectives" in R Cook, S Day Sclater and F Kaganas (eds) above n 176, 118.

[207] M Brazier, S Golombok and A Campbell above n 135.

[208] Childlessness Overcome Through Surrogacy is a lobby group that provides support and information in the United Kingdom. It came into being after the Baby Cotton case.

[209] R G Lee and D Morgan Human Fertilisation and Embryology: Regulating the Reproductive Revolution (Blackstone Press, London 2001) 197.

[210] R Edelmann, above n 142, 144.

[211] This would also include a gestational mother where she was different to the genetic mother.

[212] The Adult Adoption Information Act 1985 was passed to give adopted children aged 20 and over the right of access to information held by the State about their birth parents: in many cases this information does not include the name and details of their birth father.

[213] See chapter 3 for details of donor gamete conception in New Zealand.

[214] When donor gamete conception procedures first became available they were sometimes carried out by private medical practitioners. In such cases, information might be obtained from the doctor's records.

[215] The information is personal information and might be obtained under the Privacy Act 1993, but note that s 29(a) permits the refusal of disclosure of personal information where it would involve the unwarranted disclosure of the affairs of another person.

[216] Under the current NECAHR guidelines children must be genetically related to at least one commissioning parent if carried by a surrogate mother.

[217] Between 1981 and 1991 the number of New Zealanders aged between 20 and 39 years living in a de facto relationship increased by 84 per cent.

[218] Information supplied by the Registrar-General of Births, Deaths and Marriages in 2003.

[219] Information provided by the Minister of Social Services in April 2003 indicates that some

16 500 mothers then receiving the Domestic Purposes Benefit did not name their child's father and, accordingly, received a reduced rate of benefit. The Minister estimated that the cost of this failure to identify the fathers was more than $600 million.

[220] Estimate provided by Dr Richard Fisher, Fertility Associates, speaking at the Sex and Science Conference at the Auckland University of Technology, North Shore Campus, 26 June 2003, who based his estimate on overseas data.

[221] As in cases of mis-attributed paternity or where a man knowingly assumed care and responsibility for another man's child, holding himself out as the genetic parent.

[222] Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112, [1985] 3 All ER 402; (HL). The Law Lords held by a majority that children do not remain under the control of their parents until they reach adulthood but can give valid consent to their own medical treatment when they have sufficient maturity and understanding to weigh the risks and benefits of the proposed treatment. The formulation covers a range of matters other than medical treatment.

[223] The Convention is set out in full in appendix 1.

[224] The Convention was drafted in 1989 before the development of many new birth technologies but is considered to apply equally to children born of donated gametes, surrogacy and children of same-sex couples.

[225] Concluding Observations of the Committee on the Rights of the Child: New Zealand CRC/C/15/Add216/ 3/10/03 para 34(b).

[226] See, for example, Department of Social Welfare Puao-Te-Ata-Tu: The Report of the Ministerial Advisory Committee on a Maori Perspective for the Department of Social Welfare (Government Printer, Wellington, 1986) app II 22_24.

[227] Ministerial Committee on Assisted Reproductive Technologies, above n 136.

[228] J Fortin Children's Rights and the Developing Law (2 ed, LexisNexis, UK, 2003) 383. The formation of an individual's personal identity typically includes knowing how they are connected to others within their extended family network, and from whom they have inherited their physical characteristics, character traits, talents and quirks: see L Shanner, R Harris, E Blyth "Building Families through Donor Conception" (2002) 9_2 Journal of Infertility Counselling 18.

[229] Note the comments of Holman J in A v L (contact) [1998] 1 FLR 361, 366.

[230] Law Commission, above n 32.

[231] Sections 4 and 9 Adult Adoption Information Act 1985.

[232] Section 9(1) Adult Adoption Information Act 1985.

[233] See New York State Task Force on Life and the Law, above n 126, 363 and n 12; R & Anor

v Secretary for State for Health and Anor [2002] EWHC 1593 (Admin), [2002] 3 FCR 731.

[234] Also referred to in the literature as "donor offspring". "Children" here refers to those persons who were conceived through the use of donor sperm, eggs or embryos, even if they are now young persons or adults.

[235] The Offspring Speak a report to Health Canada on an international conference of donor offspring (Toronto, 12 August 2000) paras. 2.6.1_2.6.3, see also Shanner, Harris, Blyth, above n 228, 18.

[236] Royal Commission on New Reproductive Technologies Proceeed with Care: Final Report on New Reproductive Technologies (Canada Communications Group, Ottawa, 1993) 465.

[237] H McGavin "Sperm Donor Children Have Right to Know Fathers, says Warnock" (13 May 2002) The Independent, London.

[238] B Atlas "Lifting the Veil of Secrecy: the rights of donor conceived individuals" dissertation for LLB (Hons) University of Auckland (June 2003) 15; see also J Triseliotis 2nd Australian Adoption Conference (1978) 28.

[239] G J Annas "Fathers Anonymous: Beyond the Best Interests of the Sperm Donor" (1980) 14 FLQ 11.

[240] Royal Commission on New Reproductive Technologies, above n 236, 464.

[241] R & Anor v Secretary for State for Health and Anor [2002] EWHC 1593 (QBD Admin), [2002] 3 FCR 731: Scott-Baker J held that the Convention was engaged on the facts of the case before him but the question of whether a declaration of incompatibility with the Convention was left open for further argument.

[242] Above n 241, para 47.

[243] New York State Task Force on Life and the Law, above n 126, 364 n 18 and 368 n 47.

[244] Dr Vivienne Adair "Interim Report on Parents of Donor Children"(University of Auckland, undated approx 2002).

[245] "Donor Anonymity and Rights" (27 January 2004) BioNews 242. See: <http//www.BioNews. org.uk> (last accessed 27 February 2004).

[246] Source: BBC News (21 January 2004) <http://news.bbc.co.uk/2/hi/health/3414141.stm> (last accessed 1 March 2004).

[247] Announcement made at annual conference of Human Fertility and Embryology Authority reported as "Donor Anonymity to be removed in UK" (27 January 2004) BioNews 242, 2 <http: //www.BioNews.org.uk> (last accessed 27 February 2004); "Donor children will have right to know" The Guardian (22 January 2004).

[248] See "New South Wales to Shake-up Fertility Laws" (27 January 2004) BioNews 242 3 , <http: //www.BioNews.org.uk> (last accessed 27 February 2004).

[249] See appendix 6.

[250] Clause 55 Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003: the Family Court can make an order that a 16 or 17 year old have access to this information where satisfied it is in his or her the best interests: clause 60.

[251] They will apply only where the gametes from which the donor-conceived child was conceived were donated after the coming into force of the Act: clause 40 Human Assisted Reproductive Technology Bill.

[252] Clause 5(d) Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003.

[253] Clause 44 Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003.

[254] Clauses 50, 55 Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003.

[255] Clauses 47(1), 48(1) Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003. The Registrar-General will have a record of the donor's name and place of birth. The clinic will have information as to the donor's ethnicity, height, hair colour and personal and family medical history (cl 44).

[256] Clause 60 Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003. This provision appears to have been introduced to avoid the Bill offending the age discrimination provisions in s 21(1)(i) Human Rights Act 1993.

[257] Clause 45(2) and (3) Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003.

[258] Clauses 44, 45, 47, 48 Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003.

[259] Clauses 55 and 60 Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003.

[260] The Law Commission, in its consideration of adoption law reform, could see no reason for a fixed chronological age at which children could be given available information about their birth parents.

[261] Under the Trespass Act 1980, Harassment Act 1997 and Domestic Violence Act 1995.

[262] Clause 51(1) Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003.

[263] Clause 45(1) Human Assisted Reproductive Technology Bill as proposed to be inserted by Supplementary Order Paper 80/2003.

[264] Ken Daniels, a social worker and international expert on children of donor gametes, has spoken of support programmes in Germany where families of children born through donor gametes come together to learn from each other how best to manage such disclosures. Child and Youth Policy Conference (Wellington, 26 November 2003).

[265] See interviews with New Zealanders with children born via private surrogacy in chapter 4, `Babies O and P' and `Baby J'.

[266] R G Lee and D Morgan above n 209, 182_188.

[267] This was the suggestion made by Baroness Mary Warnock in 2003. See H McGavin above

n 237. Baroness Warnock headed the UK Committee of Inquiry into Human Fertilisation and Embryology in 1984.

[268] Personal communication from Professor Donald Evans, Director, University of Otago Bioethics Centre, Dunedin. See also D Evans (ed) Creating the Child: The ethics, law and practice of assisted procreation (Nijhoff Publishers, The Hague, 1996).

[269] Daniels, above n 264 _ influence of Mäori whängai practices.

[270] See "Donor Anonymity to be removed in UK" above n 247, 242 2; "New South Wales to Shake-up Fertility Laws" above n 248, 242 3.

[271] Sections 4 and 9 Adult Adoption Information Act 1985.

[272] Section 5(2)(a)(ii) and 5(2)(d) Adult Adoption Information Act 1985.

[273] The surrogate mother will be the child's legal mother by virtue of her status as the gestational/birth parent. The genetic father will be shown as a parent unless the surrogate mother's husband or partner is deemed or presumed by law to be the father.

[274] See section 15 Births, Deaths, and Marriages Registration Act 1995: for further details of the law governing birth registration see chapter 8.

[275] See section 15(2)(b) and (c), 15(3)(a)(i) and (ii) and 15(3)(b)(i) Births, Deaths, and Marriages Registration Act 1995.

[276] The child's mother may be uncertain of who the father is and wish to avoid the unpleasantness and cost of establishing paternity through the courts.

[277] As is the case, for example, where a child is born as the result of an extra-marital affair, or where a new partner agrees to assume responsibility for the child.

[278] The Adoption Act 1955 allows the mother to adopt her own child thus extinguishing the father's parental status.

[279] A man who is registered in a child's birth particulars will be liable for child support as a "parent" under s 6 and 7(1)(a) Child Support Act 1991, regardless of whether he is a guardian or indeed has contact with the child. The father may refuse to agree to registration of his name to avoid liability, or may agree with the mother to "top up" her reduced level of the Domestic Purposes Benefit if she agrees not to name him as her child's father.

[280] R Pickford "Unmarried Fathers and the Law" in A Bainham, S D Sclater and M Richards (eds) What is a Parent? _ A Socio-Legal Analysis (Hart Publishing, Oxford) 143, 157 n 31.

[281] The English Court of Appeal decision in Re H (Paternity: Blood Test) [1996] FLR 65 is of interest for its forthright endorsement of a child's right to know her true genetic father even though the father was not in a position to care for the child.

[282] In some cases the mother may be unable or unwilling to care for the child and the father, or his family, may be willing to assume responsibility.

[283] See F L Sonenstein, P A Holcomb, K S Seefeldt "What Works in Improving Paternity Rates" (Fall 1993) Public Welfare 26; R A Monson "State-ing Sex and Gender: Collecting Information from Mothers and Fathers in Paternity Cases" (June 1997) Gender and Society 11_3, 279.

[284] An embryo created 12 years earlier has been successfully implanted. BioNews 244 9 April 2004, 4.

[285] Section 15 Births, Deaths, and Marriages Registration Act 1995.

[286] Section 15(3)(b)(iv) or (v) Births, Deaths, and Marriages Registration Act 1995.

[287] "Unavailable" is defined in s 2 of the Births, Deaths, and Marriages Registration Act 1995 to include death.

[288] Section 15(3)(b)(iii) Births, Deaths, and Marriages Registration Act 1995.

[289] Other evidence might include family records, letters, photos, or statutory declarations from family members and friends.

[290] New Zealand fertility clinics are prevented by their rules of accreditation under the Reproductive Technology Accreditation Committee from using a dead man's sperm in the absence of his written consent. In Israel, regulations introduced in 2003 enable women to apply for a court order that semen be removed from a deceased husband or partner without his consent in order to achieve conception.

[291] Section 5(1)(a) Status of Children Amendment Act 1987.

[292] Before any proceedings are filed couples can, with a minimum of formality, take advantage of counselling services arranged by the Family Court. Once proceedings are commenced, the parties can be referred to a counsellor or can take advantage of judge-led mediation. One of the duties of counsel for the child is to explore with the disputing parties the possibility of resolving the matters in dispute by agreement. The child's lawyer can alert the adults to the child's wishes and needs and help them focus their attention on the child. Counsel for the child can talk to both parties and can engage in shuttle diplomacy. Where the Court obtains a report from a psychologist, the psychologist is likely to canvass with the parents the benefits of a negotiated settlement.

All of these services are free and are directed towards helping people to resolve their differences by agreement so as to avoid litigation and a court-imposed decision.

[293] Section 18 Guardianship Act 1968.

[294] Section 18 Guardianship Act 1968 applies only to agreements between the father and mother of a child.

[295] Unreported 5/5/03, Judge Inglis QC, FC Hamilton FP 019 316 01 para [15].

[296] See s 19 Guardianship Act 1968 and Speer v Speer (1975) 14 MCD 106.

[297] Section 20 Guardianship Act 1968 applies only where there is a court order or a pending application for custody or access. But if the child is removed to a country that is a party to the Hague Convention on Child Abduction it may be possible to have the child returned via the Convention: Christie v Dellabarca [1977] NZFLR 396, (1996), 15 FRNZ 293 and see Trapski's Family Law Vol IV GM.4.06(3).

[298] Section 20A Guardianship Act 1968.

[299] Clause 41(1) and (3)_(5) Care of Children Bill 2003.

[300] The Bill addresses the concerns raised by a full bench of the High Court in P v K above n 7, where Heath J commented "Some weight should be given to the ability of adults who choose to use artificial reproductive technologies, to reach agreement with a known donor as to what `rights' and `responsibilities' they are to have with regard to the children". He added that "[t]he child has no such choice; hence, the need for a `best interests' inquiry to evaluate whether it is appropriate to enforce such agreement".

[301] Clause 42(3) and (4) Care of Children Bill 2003.

[302] Clause 41(6) and clause 4(1)(a) Care of Children Bill 2003.

[303] Submission by Family Law Section of New Zealand Law Society to the Justice and Electoral Committee on the Care of Children Bill (24 September 2003).

[304] The relevant provisions are contained in Part VII, Div 4 of the Family Law Act 1975 (Cth).

[305] Section 63E Family Law Act 1975 (Cth).

[306] Section 63H(1)(c) Family Law Act 1975 (Cth).

[307] Sections 4, 4A Children Act 1989 (UK).

[308] Parental Responsibility Agreement Regulations 1991 (UK).

[309] Re Patrick: An application concerning contact (2002) FLC 93-096. In this case the mother killed herself and her child after the Court gave the genetic father increased access to the child against her wishes. The discussions as to his involvement prior to conception had been vague and roles undefined. The parties later strongly disagreed as to what had been agreed and understood at the time.

[310] P v K, above n 7. In that case, there had been a pre-conception agreement between two same-sex couples. Difficulties arose between them after the child's birth and the known sperm donor sought to enforce the agreement. The High Court reversed a Family Court decision that denied the donor any involvement in the life of his child, expressing concern that the law did not recognise agreements between donors and recipients.

[311] Unlike sperm, eggs cannot be frozen. Eggs are harvested, mixed with washed sperm then incubated for three to five days in a laboratory prior to implantation.

[312] The Human Assisted Reproductive Technology Bill, proposed to be amended by Supplementary Order Paper 80/2003, does not make surrogacy arrangements illegal but states that surrogacy agreements shall not be legally enforceable. While this provision is no doubt intended to protect a birth mother from being forced to relinquish her child, as it currently stands it will prevent other agreed terms from being enforceable. Such terms might provide for contact between the child and the birth mother and between the child and his or her full or half siblings.

[313] Humphreys v Polak [1901] 2 KB 385.

[314] See A Dickey Family Law (3 ed, LBC Information Services, Sydney (NSW), 1997) 338.

[315] However, the law has never prevented parents from delegating to others the day-to-day care of their children. Parents can employ a nanny or foster carer or can send their children to boarding school. They can arrange with a whänau or family member or friend to care for their children. Parenthood and guardianship involves legal status, while the actual day-to-day care of children does not.

[316] See Law Commission, above n 32, para 116 and see clause 41(2) Care of Children Bill 2003.

[317] See clause 42(6) Care of Children Bill 2003.

[318] The donor's partner and the donor's parents were given rights in the agreement drawn up by the parties in P v K above n 7.

[319] Law Commission, above n 32, paras 106_116.

[320] By reason of s 16(2) Adoption Act 1955 a birth parent is no longer a parent of the child after the making of an adoption order and there are jurisdictional difficulties in giving a non-parent enforceable rights.

[321] Law Commission, above n 32, paras, 115, 116.

[322] A copy of the plan must also be supplied with the application along with other information required under the Family Law Rules; see A Dickey, above n 314.

[323] The full sections of the Status of Children Amendment Act 1987 are set out in appendix 3.

[324] Section 17(2) Status of Children Act 1969 as proposed to be inserted by clause 167 Care of Children Bill 2003.

[325] Section 21(2) Status of Children Act 1969 as proposed to be inserted by clause 167 Care of Children Bill 2003.

[326] Section 22 Status of Children Amendment Act 1987.

[327] Department of Social Welfare, above n 226, appendix II.

[328] As was the case in P v K, above n 7, although the High Court did find an alternative route to involve the father in the life of the child via an application for custody as "any other person".

[329] Where conception is achieved via "artificial insemination" and the Status of Children Amendment Act 1987 applies. This is made even more significant by the fact that deeming, unlike the presumption of paternity, cannot be rebutted once the statutory criteria are established.

[330] A Senate Judiciary Committee in the State of Utah has recommended that the names of the commissioning parents appear on the child's birth certificate. BioNews 244 10 February 2004, 6.

[331] Currently, in New Zealand, it is not possible for commissioning parents using IVF surrogacy to be unrelated to the child because NECAHR requires a genetic link with one parent. While this can occur in private arrangements (using the surrogate's ovum and donor sperm), the social parents will have to go through an adoption process to gain legal parental responsibilities and rights in relation to the child.

[332] This includes the partner or spouse of the genetic and/or gestational mother in donor gamete conception, or the non-genetic commissioning parent in a surrogacy arrangement.

[333] Genetically related fathers might prefer to apply for a guardianship order, in recognition of the fact that they are already a "parent" but lack legal rights (see case studies chapter 4: Mr A,

O's father, P's father).

[334] Note Re Mark, No. MLF 6910 of 02; decision of Brown J in Family Court of Australia at Melbourne, 28 August 2003, where the Court made orders for parental responsibility in favour of Mr Y, the male partner of Mr X, the genetic father of the child. The child had been born under a surrogacy arrangement with a woman in the United States who was awarded contact rights. The order was made on the basis that Mark's best interests would be advanced by a legal recognition of Mr Y's role in his life.

[335] Except in the case of step-parent adoptions where a parent and step-parent adopt the parent's child to create a new two-parent family unit: see s 3(2) Adoption Act 1955.

[336] The consent of the Attorney-General must first be obtained and it must be shown the order was made by mistake or material misrepresentation: s 20(3) Adoption Act 1955.

[337] The Ministerial Committee on Assisted Reproductive Technologies, above n 136, 117, commented that some commissioning couples see this process as cumbersome and an unnecessary burden for the child if an adoption order is not granted.

[338] Law Commission, above n 32.

[339] Its origins can be traced back to the Infants Guardianship and Contracts Act 1887, which, in its turn, leads back to English laws formulated under the reign of Charles II.

[340] Section 3 Guardianship Act 1968. The proposed Care of Children Bill refers to day-to-day care rather than custody, but the differences are largely a matter of terminology.

[341] Above n 7.

[342] Law Commission, above n 34.

[343] Except in cases of adoption or donor gamete conception where parenthood is conferred by operation of law.

[344] Section 5(1) Status of Children Act 1969.

[345] The forthcoming Care of Children Bill 2003 contains provision for the Family Court to make declarations of paternity also.

[346] Section 8(3) Status of Children Act 1969, see also s 51(2) Family Proceedings Act 1980,

s 15(3)(b)(v) Births, Deaths, and Marriages Registration Act 1995; s 7(1)(f) Child Support Act 1991.

[347] This is in accordance with the presumption of paternity: s 5(1) Status of Children Act 1969.

[348] Sections 15(2)(b)(i), 15(2)(b)(ii), 15(2)(c), 15(3)(a)(i), 15(3)(a)(ii) and 15(3)(b)(i) Births, Deaths, and Marriages Registration Act 1995.

[349] Section 15(3)(a)(iii) Births, Deaths, and Marriages Registration Act 1995. Registrars attempt to involve the family of the mother in the registration process if she is unavailable. Source: Ravi Casinader: Legal Adviser, Births, Deaths and Marriages, Department of Internal Affairs.

[350] Section 15(3)(b)(ii) Births, Deaths, and Marriages Registration Act 1995.

[351] Section 15(3)(b)(vi) Births, Deaths, and Marriages Registration Act 1995.

[352] Section 15(3)(b) (iv) and (v) Births, Deaths and Marriages Registration Act 1995.

[353] Section 15(3)(b)(iii) Births, Deaths, and Marriages Registration Act 1995.

[354] As under ss 7(1)(a), 9(1)(a), 11(1)(a), 13(1)(a), 15(1)(a), Status of Children Amendment Act 1987 he is deemed to be the father of the child if he gave consent to the donor gamete conception procedure.

[355] By reason of ss 9(3)(a), 13(3)(a) Status of Children Amendment Act 1987, the status of the genetic mother is extinguished in favour of the gestational mother, unless the genetic mother later adopts the child.

[356] See Form A3 Family Courts Rules 2002 and s 24(3) Births, Deaths, and Marriages Registration Act 1995. Very few parents exercise this option, however, an adoptee who has attained the age of 18 years, or has earlier married, can ask the Registrar-General to include this information in his or her birth certificate.

[357] In Loveridge v Adlam [1991] NZFLR 267 an application for a paternity order was refused despite blood test results showing a 99.9 per cent probability and DNA analysis showing a 99.46 per cent probability that the respondent was the genetic father. While the Court held the respondent could be the father, it held that proof was not established on the balance of probabilities because the applicant lacked credibility and had had sexual relations with three other men during the three months surrounding conception.

[358] See, for example, Gattsche v Miller [1995] NZFLR 449 where Judge Inglis QC granted a paternity order in part because the blood and tissue test showed a statistical probability of over 99.99 per cent.

[359] Section 164 Family Proceedings Act 1980.

[360] The company conducts motherless testing but requires that the mother provide an affidavit giving consent for the child to be tested.

[361] See: <http://www.dnanow.com> (last accessed 27 February 2004).

[362] As recommended by the Human Genetics Commission in its 2002 report Inside Information: Balancing Interests in the Use of Personal Genetic Data (London, 2002) 166. See <http://www.hgc.gov.uk/insideinformation> (last accessed 26 February 2004).

[363] Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, Sydney, March 2003) paras [35.85] <http://www.nzlii.org/au/other/ alrc/publications/reports/96> (last accessed 2 February 2004).

[364] "Blood test" is defined in s 2 of the Family Proceedings Act 1980 as""tests carried out for the purpose of ascertaining the inheritable characteristics of blood".

[365] Law and Order Committee, Commentary to the Criminal Investigations (Bodily Samples) Amendment Bill (Wellington, 2003) 2.

[366] See: Criminal Investigations (Bodily Samples) Amendment Act 2003.

[367] For comment on the practise of blood sampling in the United Kingdom see: David Sharp "Paternity Testing _ Time to Update the Law?" (Aug 2000) Fam Law, 560, 562.

[368] In one recent case, a Mäori respondent refused testing on the basis that sampling would breach the tapu nature of human blood. Despite this, the Court drew an inference of paternity from the refusal on the basis of the importance of whakapapa to the child and the fact that tapu could be dealt with appropriately through the use of karakia. See: B v T (1997) 16 FRNZ 1975.

[369] Section 57(2) Family Proceedings Act 1980.

[370] Ingley v Smith [1996] NZFLR 600, 604 per Carruthers J.

[371] Matthews v Smith [1990] NZFLR 73, 77.

[372] Mikulic v Croatia [2002] ECHR 53176/99, para 53.

[373] [1989] ECHR 10454/83, judgment of 7 July 1989, Series A no. 159, para 39.

[374] Section 20 of the Family Law Reform Act 1969 (UK). Note, however, that a direction from the Court is only available when the Court has to resolve a dispute about paternity during the course of an existing civil proceeding. A freestanding application cannot be made under s 20.

[375] Section 69W of the Family Law Act 1975 (Cth) and s 195 of the Family Court Act 1997 (WA).

[376] Mikulic v Croatia, above n 372, para 64.

[377] The Criminal Investigations (Bodily Samples) Amendment Act was passed on 30 October 2003 amending the principal Act and extending it to the taking of bodily samples. The majority of the Act is expected to come into force by Order of Council early in 2004.

[378] Section 16 Criminal Investigations (Blood Samples) Act 1995.

[379] It is unclear whether a child of sufficient maturity and understanding could give consent to testing if they are below the age of 16. This is discussed further in paras 8.58_8.66.

[380] Section 19 Guardianship Act 1968.

[381] Section 23 Guardianship Act 1968.

[382] See, for example, H v B 24/8/94, Heron J, HC Wellington CP 324/93, CP343/93, CP369/93; K v C 23/89/93, Judge Inglis QC, FC Hastings FP020/054/93.

[383] Under s 57(2) Family Proceedings Act 1980 the Court may draw such inferences from a refusal to comply with a recommendation for testing as it deems proper in the circumstances.

[384] S v T [2003] NZFLR 223.

[385] Re O and J (Paternity: Blood Tests) [2000] 1 FLR 418 Wall J.

[386] See, for example: Re F (A Minor) (Blood tests: Paternity Rights) [1993] Fam 314; Re H (Paternity: Blood Test) [1996] 2 FLR 65 and Re CB (A Minor) (Blood Tests) [1994] 2 FLR 762. Caroline Bridges "Paternity" (May 2000) Fam Law, 324, 324.

[387] Section 25(1) Guardianship Act 1968.

[388] Gillick v West Norfolk and Wisbech Area Health Authority and the Department of Health and Social Security [1986] AC 112.

[389] Gillick v West Norfolk and Wisbech Area Health Authority and the Department of Health and Social Security above n 388.

[390] Australian Law Reform Commission, above n 363, recommendations 35.7 and 35.9. <See: http:

//www.nzlii.org/au/other/alrc/publications/reports/96> (last accessed 2 February 2004).

[391] The ALRC also recommended the Family Law Act 1975 (Cth) be amended to require that all persons with parental responsibility for the child be required to provide written consent before testing is carried out.

[392] Paula Roberts JD from the Center for Law and Social Policy in Washington, DC writes that a web search conducted on 8 January 2003 identified 1 910 sites discussing "paternity fraud", in which men who believe they have been defrauded have campaigned for State legislative reform. Paula Roberts JD "Truth and Consequences: Part 1, Disestablishing the Paternity of Non-marital Children" (in Conference Papers _ Genetic Bonds and Family Law: The Challenge of DNA Parentage Testing, American Society of Law, Medicine and Ethics, New Orleans,

27_28 March 2003).

[393] There is no reliable evidence concerning the extent of mis-attributed paternity in the United States. However, Mary Anderlik and Mark Rothstein record that physicians doing tissue typing for organ donation have given estimates ranging from between 5_20 per cent as to the number of donors who are unrelated to the men believed to be their genetic fathers. See: Mary R Anderlik and Mark A Rothstein "DNA-Based Identity Testing and the Future of the Family: A Research Agenda" (2002) 28 American Journal of Law & Medicine"215, 221.

[394] Emily Laurence Baker "Who's the Daddy?" She Magazine, New Zealand (April 2003) 64.

[395] In Re F (A Minor) (Blood tests: Parental Rights) [1993] Fam 314, [1993] 3 All ER 596 CA the Court refused to give a direction for tests on the application of a third party who had had a sexual relationship with the child's mother during her marriage, on the basis that it would be contrary to the best interests of the child to disrupt the existing family unit. In the past, it was not considered in the child's best interests to order tests where there was a danger that they might render a child "illegitimate" who had previously enjoyed "legitimate" status. See: S v S,

W v Official Solicitor [1972] AC 24, 47_48; [1970] 3 All ER 107, 115, HL per Lord MacDermott.

[396] Elizabeth Batholet "Guiding Principles for Picking Parents" (in Conference Papers _ Genetic Bonds and Family Law: The Challenge of DNA Parentage Testing, American Society of Law, Medicine and Ethics, New Orleans, 27_28 March 2003).

[397] A "lead maternity carer" (who may be a midwife or a doctor) is required to offer the screening service to the child's mother and obtain her informed consent. Bruce Slane Guthrie Tests (Office of the Privacy Commissioner, Auckland, 25 September 2003) 3.

[398] Slane, above n 397, para 3.10.

[399] H v G (14 May 1999) High Court Auckland M 1868/98, Salmon J.

^{Appendix Footnote}

[1] Reproductive Technology Accreditation Committee

[2] Child Youth and Family Service