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Preface

The Minister Responsible for the Law Commission has asked the Law Commission to review the legal rules that determine parenthood. In particular, we have been requested to examine the assumptions that underlie the current law, including issues relating to fatherhood; what values to attach to genetic, caregiving and gestational parenthood; how many parents a child can have in law; how to determine parenthood in surrogacy arrangements. We also consider the value to be attached to parenthood agreements between adults, and the processes for proving and disproving parenthood.

This review is necessary because of the number and diversity of family forms now existing in New Zealand. At least a third of our children live outside the nuclear family model comprised of a genetic mother and father raising their children together in a separate household.

Our parental status laws have evolved from this nuclear family model. It is therefore timely to review whether the law is providing the necessary legal structures for families outside this model and the individuals within them. Our laws must respond to the needs of all the country’s families. They each require a legal framework that will provide certainty and clarify the responsibilities and rights of the adults within them. In that way children are supported. Children’s needs and interests are the overarching principle underlying the review.

The paper proceeds by identifying the legal principles that underpin our law, identifying the problem areas, and suggesting possible options. Many of the matters discussed are complex and require an understanding not only of current legal provisions but also of proposed changes foreshadowed in the Care of Children Bill and the Human Assisted Reproductive Technology Bill. We have provided brief chapter summaries to assist readers to navigate around the document.

We seek a response from all sectors of society – many citizens have an interest in family laws. We are also particularly interested in hearing from families affected by the issues discussed here and those for whom the current laws do not give adequate protection and support. Following analysis of those responses we will report to the Minister on the current laws with recommendations for any areas that may need alterations.

Although the discussion paper includes many questions, respondents should feel free to deal with only those matters most relevant to them. Should groups so request, Law Commission personnel will meet with them , as available, to hear views expressed orally and/or to provide clarification on matters raised in the paper.

In preparing this discussion paper we undertook a preliminary round of consultations with a small number of key organisations and individuals. We record our thanks for the help we have received from them and also from our peer reviewers who have commented on drafts. Their names appear below.

The Commissioner in charge of preparing this discussion paper was Frances Joychild. She was assisted by legal researchers Robert Ludbrook, Claire Phillips and Helen Colebrook.

Submissions or comments on this discussion paper should be sent by 24 May 2004 to Claire Phillips, Law Commission, PO Box 2590, DX SP23534, Wellington, or by email to parenthood@lawcom.govt.nz.

Any inquiries or informal comments can be directed to Claire Phillips (phone (04) 914 4826) or Susan Hall (phone (04) 914 4819).

This discussion paper is also available on the internet at the Commission’s website: http://www.lawcom.govt.nz.

Parenthood, guardianship and parental responsibilities

Access

A person who obtains an access order from the Family Court has the right to contact with the child. In most cases only a parent or step-parent may apply for an access order.

Custody

A person who obtains a custody order from the Family Court has the right to have a child live with them and has the responsibility to attend to the child’s day-to-day care. Where parents who have separated cannot agree where the child will live they can ask the Family Court to make a custody order. Non-parents can ask the Court to grant them custody of a child but the Court must first give them leave to apply.

Genetic parents

Those persons whose eggs or sperm have been used to create a child.

Gestational mother

The woman who gives birth to the child and who may or may not be the child’s genetic mother.

Guardian

Most parents are automatically guardians of their children. People who are not parents can be appointed a guardian by the Family Court where such appointment is in the child’s best interests.

Guardian’s responsibilities and rights

A guardian is responsible for the child’s upbringing and has a right and duty (jointly with the child’s other guardian or guardians) to make decisions on important matters affecting the child, for example, the child’s names, manner of education and choice of school, medical treatment and religion. A guardian is entitled to have the child in her or his personal care unless there is a court order giving sole custody to someone else.

Paramountcy principle

This principle (sometimes called the “child’s best interests” or the “welfare principle”) is the overarching principle by which the Family Court decides matters to do with children. The Guardianship Act 1968 states that the Court, in making decisions about children, must regard the welfare of the child as the first and paramount consideration.

Parenthood

In law, the child’s mother is the woman who gives birth to the child, and the child’s father is the man with whose sperm the child was conceived. They are the child’s legal parents. Parenthood alone does not give parental responsibilities and rights for a child. That is given by guardianship.

Legal parenthood can also be acquired by people with no genetic connection to the child by means of an adoption order or by statutory deeming provision (in the case of children conceived with donated gametes).

There is a legal presumption that a woman’s husband is the father of a child born within marriage or within 10 months of the marriage being dissolved. The presumption may be rebutted in cases where there is evidence that another man is the child’s genetic father.

Social parent(s)

Those persons who have taken on the responsibility for the upbringing of the child, who may or may not be child’s genetic parents or the woman who gave birth to the child.

Mäori

Atawhai

An orphan or adopted child, sometimes used interchangeably with “whängai”.

Hapü

A larger village community, sub-tribe.

Karakia

A prayer or chant, often used to open or close a meeting.

Iwi

A regionally based kin group, which claims descent from a single distant ancestor, tribe.

Mätauranga

Information, knowledge, education.

Matua whängai

A member of a child’s family who takes on the responsibility of caring for a whängai.

Tapu

Sacred, forbidden, taboo.

Whakapapa

A person’s genealogy, cultural identity, family tree. It is also said to be the glue that holds the Mäori world together.

Whänau

The extended family, which has been the basic social unit of Mäori society. It usually included grandparents or great grandparents and their direct descendants.

Whanaungatanga

The centrality of family relationships to the Mäori way of life.

Whängai (tamaiti whängai)

A child given by the parents to family members to raise, where the child remains aware who his or her birth parents are and what his or her whakapapa is.

Assisted human reproduction

Assisted human reproduction (AHR)

A range of procedures designed to assist a couple or an individual to conceive a child with medical assistance. Procedures may involve the use of donated sperm, eggs or a donated embryo to bring about conception.

Donor

A person who gives an egg or sperm to assist another or others to conceive a child.

Donor-conceived child (donor offspring)

A person conceived and born as a result of donated egg, sperm or embryo.

Donor eggs

Eggs (oocytes or ovum) that have been given by one woman to another for use in human conception.

Donor embryo

An embryo that is given by the persons whose gametes created it, for use by another in human conception. The procedure of embryo donation is not yet carried out in New Zealand.

Donor gamete conception

Conception achieved using donor sperm or a donor egg without sexual intercourse, either:

• with medical assistance or the assistance of a fertility clinic; or

• through self-insemination.

Donor sperm

Sperm, contained within semen, that has been donated by a male to a person who is not his wife or partner for use in human conception.

Embryo

A term used to refer to a fertilised egg (or “zygote”) until approximately the end of the eighth week of gestation.

Gametes

Human cells necessary for sexual reproduction, that is, eggs in women and sperm on men.

Intracytoplasmic sperm injection (ICSI)

A single sperm is retrieved directly from the testes with a fine needle, or from ejaculated semen, and injected directly into an egg. The fertilised egg is then transferred to the uterus.

In vitro fertilisation (IVF)

Fertilisation occurring outside the human body where eggs, collected from a woman, are fertilised with sperm in a laboratory – usually in a dish or test tube.

Self-insemination

A procedure by which semen is inserted by a woman into her vagina without medical assistance (typically by using a needle-less syringe).

Semen

Fluid containing sperm that is released from the male genital tract.

Sperm

Male reproductive cells necessary for the fertilisation of an egg.

Surrogacy

Commissioning parent(s)

The person or persons in a surrogacy arrangement who arrange for the surrogate mother to gestate and give birth to a child for them to raise from birth. The commissioning parents are always the social parents of the child. One or both of them may also be the child’s genetic parent(s) if their gametes were used in conception.

Full surrogacy (IVF)

Refers to arrangements in which the gametes of commissioning parents and/or a donor or donors are used in conception.

Surrogacy

An arrangement in which a woman agrees to carry and give birth to a child for another person or persons to raise. Surrogacy agreements may be altruistic (unpaid) or for financial reward.

Surrogate mother

A woman who agrees to gestate and give birth to a child for another person or persons (the commissioning parents) to raise from birth. A surrogate mother is always the gestational mother of the child, and may also be the child’s genetic mother if her egg is used in conception.

Traditional or partial surrogacy

Refers to arrangements in which the surrogate mother’s own eggs are used to achieve conception, either with the assistance of a fertility clinic or through self-insemination with the semen of the commissioning father or of a donor.

CHAPTER 1: INTRODUCTION

Aim

The Introduction sets out key background information for readers to have when considering the issues raised in this discussion paper. Specifically it:

• Summarises legal concepts of parenthood in New Zealand law, explaining that our laws are based on a two genetic parent cohabitation model.

• Discusses the changes to family structures that have occurred in New Zealand in recent decades and also the developments in donor gamete conception. The result of the above is that in many situations children are being raised from birth by people who are not their genetic parents.

• Raises issues relative to information recorded on birth certificates and notes that birth certificates do not always contain a full or accurate record of a child’s genetic lineage.

• Records that New Zealand’s parental status laws have never reflected customary laws and practices of Mäori, particularly in relation to whängai.

• Summaries the Terms of Reference that underpin this discussion paper.

• Indicates that the overarching principle adopted in the preparation of this paper is the needs and interests of children.

• Explains that the focus in this review is on the people and children for whom the current rules provide inadequate support or protection.

• Explains that issues involving contested custody and access, step and foster parenting and the status of whängai are not part of the review.

CHAPTER 2: PARENTHOOD, GUARDIANSHIP AND PATERNITY

Aim

To set out what the current parenthood and guardianship laws are and to review laws relating to fatherhood.

Issues

The current law presumes a man to be the father of any child born to his wife during their marriage or within 10 months of the marriage being dissolved. If the mother and father of a child are not married, but are living together, there is no presumption that he is the father of her child born during their relationship.

They must each sign the birth registration form that he is the father. Where contested, fatherhood can be proved to an extremely high degree of reliability by DNA testing.

Is the presumption of paternity still a useful and appropriate way to determine fatherhood? If retained, should the presumption of paternity be extended so that it applies to men who are living with the mother of the child at or about the time of conception?

What might be done

Presumption of paternity

• Keep the presumption that a married man is the father of a child born to his wife during their marriage.

• Alter the presumption so that it only applies to married men who are living with the mother at or about the time of conception.

• Remove the presumption.

• Extend the presumption to de facto partners the child’s mother.

• Extend the presumption to men in de facto relationships but apply various other conditions that require, for example, the couple to be living together at or about the time of conception or to have cohabited at any time between 44 and 20 weeks before birth.

CHAPTER 3: DONOR GAMETE CONCEPTION

Aim

To review the laws that allocate parenthood when children are conceived by donor gametes. In these situations the children’s social parents (caregivers) are usually genetic/non-genetic parent combinations.

To consider how the law might recognise children’s relationships with their social parents, genetic parents and their gestational mother.

To examine assumptions about how many parents a child should have in law.

Current situation

• The Status of Children Amendment Act 1987 transfers full parental status from the sperm donor to the mother’s spouse or male partner automatically. Sperm and egg donors lose status as parents and all parental rights and responsibilities.

• Where a single woman or a woman in a lesbian relationship conceives using donor sperm the law does not extinguish the parenthood of the donor but removes the donor’s parental rights and liabilities towards the child. It does not transfer parental status to a same-sex partner of the mother, as it does to opposite-sex partners, but will do so under proposals in the Care of Children Bill. The Bill will also extinguish the parenthood of the sperm donor in these situations, as it does in heterosexual-couple donor conceptions.

• If a woman conceives a child using a donated egg or embryo she is deemed to be the child’s full legal parent. The parenthood of the donor is extinguished along with all her parental rights and responsibilities.

Issues

• These laws have benefits in that they provide the social parent who is not genetically related to the child with legal parental status in a simple and straightforward manner. However, they create a legal fiction and, what some term “deceit”, in that the mother’s husband or partner is held out in law to be the child’s genetic parent.

• The current rules also create problems when it is intended that the donor will play a parental role in the child’s life. Such agreements often exist where a same-sex couple is involved. The donor’s rights and liabilities as a parent are extinguished.

• The assumption underlying the current rules is that the child will have two opposite-sex parents. When a child is raised by three or four adults who share parental responsibilities, or by two same-sex parents, the law does not recognise the reality of the parenting arrangements. A child born to a single woman or to a woman in a same-sex relationship where conception has been achieved with donor sperm has only one legal parent, but retains a nominal genetic father who has no rights and liabilities towards the child. Under proposals in the Care of Children Bill, the child’s genetic father would have no legally recognised parental status at all, not even as the genetic father.

What might be done (options set out in chapters 5 and 7)

• Create a register held by the Registrar-General of Births, Deaths and Marriages to record full details of the genetic parents of all donor-conceived children. (The Human Assisted Reproductive Technology Bill makes provision for a full record of such details to be held at the clinic and passed onto the Registrar-General after 50 years or on closure of the clinic, with only brief details being held by the Registrar-General.)

• Require that the birth certificate of every donor-conceived child be annotated to indicate in some way that the child was conceived with donated gametes.

• Provide that donor-conceived children shall have two birth certificates – a private one that records genetic parenthood and a public one that records social parenthood. Where egg donation was involved, it might list two mothers: the genetic mother and the gestational mother. In this way, donor-conceived children would have an accurate record of their genetic, gestational and social parents and no child would have only one recorded parent.

• Require fertility clinics to provide counselling for parents as part of donor gamete treatment as to the benefits of telling their child the circumstances of their conception.

• Place a legal duty on parents to tell their children of the true circumstances of their conception.

• Make changes to the law so that a child might have two legal parents of the same sex, and more than two legal parents, and that the names of all such parents be shown on the child’s public birth certificate.

• Continue to reallocate full parenthood by deeming the mother’s spouse or partner (whether male or female) to be the child’s joint parent and extinguishing the parental status of any gamete donor. (The current law with the addition of a same-sex partner as in the Care of Children Bill.)

• Continue to reallocate parenthood via statutory deeming provision, but amend the law so the donor’s genetic parenthood is recognised but the rights and responsibilities of parenthood are transferred.

• Enable a partner, spouse, donor, donor’s partner or other person to obtain a court order giving them joint parental status and joint responsibility for the care and upbringing of the child with the parent. This might be termed a parental status order and a fast-track process might be established so that the order was made before birth to come into effect upon birth.

• Reallocate parenthood by granting non-genetic parents automatic guardianship on the birth of the child. A new status of “enduring guardianship” might be created to take effect from birth and to continue for the lifetime of guardian and child.

• Require both parents to apply to the Family Court for a guardianship order, which would make the genetic parent a parent for all purposes and the non-genetic parent a guardian.

• Require the non-genetic parent to apply to the Family Court for an adoption order, while the genetic parent sought guardianship.

CHAPTER 4: SURROGACY

Aim

To ensure the child conceived in a surrogacy arrangement is gestated and cared for after birth by adults who are emotionally stable and secure in their relationships with the child.

To ensure the child will have knowledge of both his or her genetic parents and the gestational mother, where these adults are not raising the child.

To ensure the gestational mother of a child born to a surrogacy arrangement has legal protections before conception, during pregnancy and after birth to prevent the mother being forced or pressured to hand over the child to others.

To ensure that the commissioning parents of children born into surrogacy arrangements are supported by a legal parent–child framework that enables them to take on the responsibilities and exercise the rights of legal parents.

Current situation

There is a mismatch between the agreement entered into by parties to a surrogacy arrangement and their legal status in relation to the child. Under current law, the surrogate mother is the child’s legal mother and she and her partner or husband have parental rights and responsibilities, even though it is planned that the child will be raised by the commissioning parents. The commissioning parents have no recognised legal relationship with the child, even where they are the genetic parents and have been the child’s primary caregivers from birth.

Commissioning parents can only acquire legal parenthood by adoption. There are serious obstacles. The Adoption Act 1955 makes it unlawful for anyone to have a child in their home with a view to adoption without prior approval of the Department of Child, Youth and Family Services. The Act forbids advertising and payments for a child and creates a legal fiction that the adoptive parents are the child’s genetic and gestational parents, whether or not they are. The Act creates uncertainty for the child as well as the adults until the adoption order is made.

What might be done (options as set out in chapters 5 and 7)

Parental status order

• Commissioning parents could apply to the Court prior to birth of the child for a parental status order. This could be granted on condition that it would take effect after a specified period after birth, during which time the surrogate mother could seek to have the order set aside. However, the child could be cared for from birth by the commissioning parents.

• There may be conditions that have to be met before an order could be made: for example, a requirement that one of the commissioning couple is the genetic parent; that the commissioning couple and surrogate mother have independent legal advice and independent and joint counselling.

• If the surrogate mother made application to set the parental status order aside, the Court would determine the issue on the basis of the child’s welfare and best interests. There might be a rebuttable presumption that if the child was the full genetic child of the commissioning parents they would be awarded custody.

• The effect of a parental status order would be to bestow on the commissioning parents all the rights and responsibilities of parenthood, but not genetic parenthood unless they are genetic parents. It would extinguish the parental rights and responsibilities of the surrogate mother and her partner, unless the parties wished otherwise.

Guardianship

• The commissioning parents could apply to the Family Court to be appointed joint guardians of the child. If a guardianship order was granted it would give them the parental rights and responsibilities of a natural parent. There might be provision for an “enduring guardianship” order, which would create a legal relationship with succession rights beyond 18 years.

Adoption

• Changes might be made to the Adoption Act 1955 so that adoption orders could be made before birth to take effect after birth. The surrogate mother would have a specified period in which to apply to have the orders set aside.

• When such an order was made the child could be cared for from birth in the home of the commissioning parents.

• Conditions might be set on who could adopt in this way and requirements for joint counselling, independent legal advice and approval of the commissioning parents by the Department of Child, Youth and Family Services might be established.

• Where the child was the genetic child of one of the adopting parents some pre-conditions might be waived, such as the need for Department of Child, Youth and Family Services approval.

• The law might be changed so that, in a surrogacy situation, the man and/or woman whose gametes were used to achieve conception would be deemed to be the child’s legal parents from birth.

CHAPTER 5: CHILDREN AND IDENTITY

Aim

To ensure all children have an accurate record, available to them, of their birth and genetic origins.

Issues

• Official statistics indicate that a significant number of children do not have their father’s name listed on their birth certificate.

• Other children have mothers and fathers listed on the birth certificate who are not their genetic parents. These people may have been presumed or deemed by law to be legal parents (by way of the presumption of parenthood, adoption and donor gamete conceptions in opposite-sex relationships) or they may have been wrongly or mistakenly registered as parents when the birth was notified.

• There is a growing body of research and information that indicates that many children need to know their genetic background to complete their sense of identity and to be able to adjust and function fully. The law needs to find ways to ensure that children have access to this information, while at the same time strengthening and supporting the critical role played by a child’s social parents.

What might be done

Fathers whose names and details are not recorded in a child’s birth information

• A state agency might be given the responsibility of identifying and registering parents who are not named on the child’s birth certificate.

Children born by donor gamete conception and surrogacy (where a child is usually raised by a genetic/non-genetic parent combination)

• Clinics might be required to educate parents as to the importance of telling their children of their true genetic and birth origins, or there may be a duty placed on parents to tell their children.

• The names and details of the genetic and gestational parents of all donor-conceived children or children born to a surrogate mother, whether in a clinic or through private arrangements, might be recorded in a register held by a state agency. The information could be accessed by the child or, in the case of young children, by guardians on the child’s behalf.

• The child’s birth certificate might be annotated so as to indicate that parenthood is not genetic, for example, by adding the words “by donor”; or “by section 4 Status of Children Amendment Act 1987”.

• A system of dual birth certificates might be implemented. The publicly accessible certificate would record the child’s social parents. A second certificate would contain the child’s full genetic and birth history and could be accessed only by the child and those persons recorded on it.

CHAPTER 6: AGREEMENTS

Aim

To make greater use of agreements in situations where there are more than two adults involved in the conception, birth and raising of a child to ensure legal certainty and clarity as to the individual parental responsibilities and rights of the adults towards the child and the responsibilities they have towards each other.

Issues

Many children have more than two adults involved in their conception, birth and day-to-day care. Typically, these children will be conceived via donor gametes; born into surrogacy arrangements or born into gay and lesbian-led families.

The law is a blunt instrument in the allocation of parental responsibilities in these cases, and works on a paradigm of two parents of opposite sex. It would be almost impossible for the law to anticipate and cover the variety of parental arrangements chosen by the adults involved.

Agreements are a means by which the intentions and undertakings of the parties could be recorded from the outset so that the legal status of those involved will be tailor-made to the circumstances of the individual families.

What might be done

• Adults involved in the conception, birth and raising of children might be given the power to register agreements in the Family Court that they have made as to the parental rights, responsibilities and intended parental status of all parties.

• Once registered, the terms of the agreements could be enforced subject to the best interest of the child as the overriding factor.

• Before registration, the adults could be required to have had independent legal advice and separate and joint counselling.

• Registered agreements could be declared to be evidence to be given weight by the Court when considering applications for adoption, guardianship, or parental status orders.

CHAPTER 7: OPTIONS

Aim

To provide a number of possible options for a legal framework that would reallocate parenthood in situations where children are not raised by both of their genetic parents or their gestational mother. Typically, these children will be conceived via donor gametes; born into surrogacy arrangements or born into gay and lesbian-led families.

Issues

The current legal framework often creates a mismatch between the legal responsibilities and rights of parenthood and the intentions and practical arrangements of those adults involved in the child’s conception, birth and care. Where it does not create a mismatch, it nevertheless creates a legal fiction by hiding the fact that the child’s genetic parents are not the social parents. It denies the child the opportunity to find this out in the future.

It is proposed that the following guiding principles be applied when weighing up options. These are:

• The best interests of the child should be paramount.

• Children have a right to know the circumstances of their conception and birth.

• Persons raising children from birth as “parents” should have the legal responsibilities and rights necessary to nurture and rear the child.

• All families, where children are being raised, need legal rules relating to parenthood that address the contributions and intentions of the adults in them.

• A child can have a number of committed and co-operative adults involved in his or her upbringing, provided that these people always have clear lines of responsibility and mechanisms for dealing with conflict.

• Children should be given the opportunity to express their views on matters that affect them, and have their views taken into account.

What might be done (set out also in chapter summary 4 and 5)

Legal responsibilities and rights might be reallocated in a number of different ways. These are:

• By retaining the status quo but making adjustments to address current difficulties.

• Reallocating parenthood by means of a “parental status order”.

• Reallocating parenthood by means of an adoption order but amending adoption law to resolve current difficulties.

• Reallocating parenthood by way of an “enduring guardianship” order.

CHAPTER 8: PROVING AND DISPROVING PARENTHOOD

Aim

To provide clear and just processes for determining the genetic parenthood of children.

Issues

If a child is born within marriage, the child is presumed to be a child of the birth mother and her husband, unless there is evidence to the contrary. If a child is born outside marriage no presumption is made as to who the father is. Hence, scientific testing to prove and disprove paternity is critical in some cases. Children can now be born to a woman with whom they have no genetic connection, although she is their legal mother. There may be occasions where the genetic mother or the child wants legal recognition as a genetic parent. Should she also be able to seek a declaration of maternity?

Particular issues arise in relation to the way in which DNA parentage testing is used to establish legal parenthood. Questions arise as to how tests are carried out and by whom; the invasive nature of DNA blood sampling; the consents necessary for tests to be carried out; the Court’s inability to enforce compliance with its recommendations for testing; and the use of babies’ stored blood samples (“Guthrie tests”) for DNA parentage testing.

What might be done

• Establish a legal process for establishing the genetic motherhood of a child. Should she be able to seek a declaration of maternity, even though she did not give birth to the child?

• Impose controls on DNA parentage testing by regulating service providers through a system of accreditation; by introducing a Code of Practice for providers, similar to that in the United Kingdom; or by requiring that tests be conducted only pursuant to a court order.

• Allow DNA parentage testing to be carried out on bodily samples other than blood samples, for example, buccal (mouth) swabs or hair follicles.

• Impose sanctions for a failure to comply with a court order for testing.

• Give the Court power to grant or refuse consent for a child to be tested in cases where the child’s guardians cannot agree.

• Require that the consent of children be obtained for DNA parentage testing where they have the required knowledge, competence and maturity to give a free and informed consent.

• Regulate third party access to babies’ Guthrie tests for the purposes of DNA parentage testing where the child’s guardian refuses consent.

Acknowledgements

Peer reviewers

Professor Mark Henaghan, Dean of Law School, University of Otago, Dunedin

Catriona MacLennan, Barrister, Auckland

also

Helen Colebrook (on leave from the Commission) and

Dayle Takitimu (specific sections)

Professionals and academics

Associate Professor Ken Daniels, Department of Social Work, University of Canterbury, Christchurch

Dr Liz Harding, Auckland

Organisations

National Ethics Committee on Assisted Human Reproduction

Fertility Associates, Auckland and Wellington

Fertility Association of New Zealand

Fertility Plus, Auckland

Christchurch Fertility Centre

Interchurch Bioethics Council, Wellington

Nathaniel Centre, Wellington

Otago University Bioethics Centre

Otago Fertility Services

Women’s Health Action Group

Government agencies

Births, Deaths and Marriages (Department of Internal Affairs)

Ministry of Health

Ministry of Justice

Individuals

Peter and Toni Allpress

Maewa Kaihau

Mandy Wells, Wendy Wells and Phyllis Lash

Common terms

The Minister Responsible for the Law Commission has asked the Law Commission to review the legal rules that determine parenthood. In particular, we have been requested to examine the assumptions that underlie the current law, including issues relating to fatherhood; what values to attach to genetic, caregiving and gestational parenthood; how many parents a child can have in law; how to determine parenthood in surrogacy arrangements. We also consider the value to be attached to parenthood agreements between adults, and the processes for proving and disproving parenthood.

This review is necessary because of the number and diversity of family forms now existing in New Zealand. At least a third of our children live outside the nuclear family model comprised of a genetic mother and father raising their children together in a separate household.

Our parental status laws have evolved from this nuclear family model. It is therefore timely to review whether the law is providing the necessary legal structures for families outside this model and the individuals within them. Our laws must respond to the needs of all the country’s families. They each require a legal framework that will provide certainty and clarify the responsibilities and rights of the adults within them. In that way children are supported. Children’s needs and interests are the overarching principle underlying the review.

The paper proceeds by identifying the legal principles that underpin our law, identifying the problem areas, and suggesting possible options. Many of the matters discussed are complex and require an understanding not only of current legal provisions but also of proposed changes foreshadowed in the Care of Children Bill and the Human Assisted Reproductive Technology Bill. We have provided brief chapter summaries to assist readers to navigate around the document.

We seek a response from all sectors of society – many citizens have an interest in family laws. We are also particularly interested in hearing from families affected by the issues discussed here and those for whom the current laws do not give adequate protection and support. Following analysis of those responses we will report to the Minister on the current laws with recommendations for any areas that may need alterations.

Although the discussion paper includes many questions, respondents should feel free to deal with only those matters most relevant to them. Should groups so request, Law Commission personnel will meet with them , as available, to hear views expressed orally and/or to provide clarification on matters raised in the paper.

In preparing this discussion paper we undertook a preliminary round of consultations with a small number of key organisations and individuals. We record our thanks for the help we have received from them and also from our peer reviewers who have commented on drafts. Their names appear below.

The Commissioner in charge of preparing this discussion paper was Frances Joychild. She was assisted by legal researchers Robert Ludbrook, Claire Phillips and Helen Colebrook.

Submissions or comments on this discussion paper should be sent by 24 May 2004 to Claire Phillips, Law Commission, PO Box 2590, DX SP23534, Wellington, or by email to parenthood@lawcom.govt.nz.

Any inquiries or informal comments can be directed to Claire Phillips (phone (04) 914 4826) or Susan Hall (phone (04) 914 4819).

This discussion paper is also available on the internet at the Commission’s website: http://www.lawcom.govt.nz.

Parenthood, guardianship and parental responsibilities

Access

A person who obtains an access order from the Family Court has the right to contact with the child. In most cases only a parent or step-parent may apply for an access order.

Custody

A person who obtains a custody order from the Family Court has the right to have a child live with them and has the responsibility to attend to the child’s day-to-day care. Where parents who have separated cannot agree where the child will live they can ask the Family Court to make a custody order. Non-parents can ask the Court to grant them custody of a child but the Court must first give them leave to apply.

Genetic parents

Those persons whose eggs or sperm have been used to create a child.

Gestational mother

The woman who gives birth to the child and who may or may not be the child’s genetic mother.

Guardian

Most parents are automatically guardians of their children. People who are not parents can be appointed a guardian by the Family Court where such appointment is in the child’s best interests.

Guardian’s responsibilities and rights

A guardian is responsible for the child’s upbringing and has a right and duty (jointly with the child’s other guardian or guardians) to make decisions on important matters affecting the child, for example, the child’s names, manner of education and choice of school, medical treatment and religion. A guardian is entitled to have the child in her or his personal care unless there is a court order giving sole custody to someone else.

Paramountcy principle

This principle (sometimes called the “child’s best interests” or the “welfare principle”) is the overarching principle by which the Family Court decides matters to do with children. The Guardianship Act 1968 states that the Court, in making decisions about children, must regard the welfare of the child as the first and paramount consideration.

Parenthood

In law, the child’s mother is the woman who gives birth to the child, and the child’s father is the man with whose sperm the child was conceived. They are the child’s legal parents. Parenthood alone does not give parental responsibilities and rights for a child. That is given by guardianship.

Legal parenthood can also be acquired by people with no genetic connection to the child by means of an adoption order or by statutory deeming provision (in the case of children conceived with donated gametes).

There is a legal presumption that a woman’s husband is the father of a child born within marriage or within 10 months of the marriage being dissolved. The presumption may be rebutted in cases where there is evidence that another man is the child’s genetic father.

Social parent(s)

Those persons who have taken on the responsibility for the upbringing of the child, who may or may not be child’s genetic parents or the woman who gave birth to the child.

Mäori

Atawhai

An orphan or adopted child, sometimes used interchangeably with “whängai”.

Hapü

A larger village community, sub-tribe.

Karakia

A prayer or chant, often used to open or close a meeting.

Iwi

A regionally based kin group, which claims descent from a single distant ancestor, tribe.

Mätauranga

Information, knowledge, education.

Matua whängai

A member of a child’s family who takes on the responsibility of caring for a whängai.

Tapu

Sacred, forbidden, taboo.

Whakapapa

A person’s genealogy, cultural identity, family tree. It is also said to be the glue that holds the Mäori world together.

Whänau

The extended family, which has been the basic social unit of Mäori society. It usually included grandparents or great grandparents and their direct descendants.

Whanaungatanga

The centrality of family relationships to the Mäori way of life.

Whängai (tamaiti whängai)

A child given by the parents to family members to raise, where the child remains aware who his or her birth parents are and what his or her whakapapa is.

Assisted human reproduction

Assisted human reproduction (AHR)

A range of procedures designed to assist a couple or an individual to conceive a child with medical assistance. Procedures may involve the use of donated sperm, eggs or a donated embryo to bring about conception.

Donor

A person who gives an egg or sperm to assist another or others to conceive a child.

Donor-conceived child (donor offspring)

A person conceived and born as a result of donated egg, sperm or embryo.

Donor eggs

Eggs (oocytes or ovum) that have been given by one woman to another for use in human conception.

Donor embryo

An embryo that is given by the persons whose gametes created it, for use by another in human conception. The procedure of embryo donation is not yet carried out in New Zealand.

Donor gamete conception

Conception achieved using donor sperm or a donor egg without sexual intercourse, either:

• with medical assistance or the assistance of a fertility clinic; or

• through self-insemination.

Donor sperm

Sperm, contained within semen, that has been donated by a male to a person who is not his wife or partner for use in human conception.

Embryo

A term used to refer to a fertilised egg (or “zygote”) until approximately the end of the eighth week of gestation.

Gametes

Human cells necessary for sexual reproduction, that is, eggs in women and sperm on men.

Intracytoplasmic sperm injection (ICSI)

A single sperm is retrieved directly from the testes with a fine needle, or from ejaculated semen, and injected directly into an egg. The fertilised egg is then transferred to the uterus.

In vitro fertilisation (IVF)

Fertilisation occurring outside the human body where eggs, collected from a woman, are fertilised with sperm in a laboratory – usually in a dish or test tube.

Self-insemination

A procedure by which semen is inserted by a woman into her vagina without medical assistance (typically by using a needle-less syringe).

Semen

Fluid containing sperm that is released from the male genital tract.

Sperm

Male reproductive cells necessary for the fertilisation of an egg.

Surrogacy

Commissioning parent(s)

The person or persons in a surrogacy arrangement who arrange for the surrogate mother to gestate and give birth to a child for them to raise from birth. The commissioning parents are always the social parents of the child. One or both of them may also be the child’s genetic parent(s) if their gametes were used in conception.

Full surrogacy (IVF)

Refers to arrangements in which the gametes of commissioning parents and/or a donor or donors are used in conception.

Surrogacy

An arrangement in which a woman agrees to carry and give birth to a child for another person or persons to raise. Surrogacy agreements may be altruistic (unpaid) or for financial reward.

Surrogate mother

A woman who agrees to gestate and give birth to a child for another person or persons (the commissioning parents) to raise from birth. A surrogate mother is always the gestational mother of the child, and may also be the child’s genetic mother if her egg is used in conception.

Traditional or partial surrogacy

Refers to arrangements in which the surrogate mother’s own eggs are used to achieve conception, either with the assistance of a fertility clinic or through self-insemination with the semen of the commissioning father or of a donor.

CHAPTER 1: INTRODUCTION

Aim

The Introduction sets out key background information for readers to have when considering the issues raised in this discussion paper. Specifically it:

• Summarises legal concepts of parenthood in New Zealand law, explaining that our laws are based on a two genetic parent cohabitation model.

• Discusses the changes to family structures that have occurred in New Zealand in recent decades and also the developments in donor gamete conception. The result of the above is that in many situations children are being raised from birth by people who are not their genetic parents.

• Raises issues relative to information recorded on birth certificates and notes that birth certificates do not always contain a full or accurate record of a child’s genetic lineage.

• Records that New Zealand’s parental status laws have never reflected customary laws and practices of Mäori, particularly in relation to whängai.

• Summaries the Terms of Reference that underpin this discussion paper.

• Indicates that the overarching principle adopted in the preparation of this paper is the needs and interests of children.

• Explains that the focus in this review is on the people and children for whom the current rules provide inadequate support or protection.

• Explains that issues involving contested custody and access, step and foster parenting and the status of whängai are not part of the review.

CHAPTER 2: PARENTHOOD, GUARDIANSHIP AND PATERNITY

Aim

To set out what the current parenthood and guardianship laws are and to review laws relating to fatherhood.

Issues

The current law presumes a man to be the father of any child born to his wife during their marriage or within 10 months of the marriage being dissolved. If the mother and father of a child are not married, but are living together, there is no presumption that he is the father of her child born during their relationship.

They must each sign the birth registration form that he is the father. Where contested, fatherhood can be proved to an extremely high degree of reliability by DNA testing.

Is the presumption of paternity still a useful and appropriate way to determine fatherhood? If retained, should the presumption of paternity be extended so that it applies to men who are living with the mother of the child at or about the time of conception?

What might be done

Presumption of paternity

• Keep the presumption that a married man is the father of a child born to his wife during their marriage.

• Alter the presumption so that it only applies to married men who are living with the mother at or about the time of conception.

• Remove the presumption.

• Extend the presumption to de facto partners the child’s mother.

• Extend the presumption to men in de facto relationships but apply various other conditions that require, for example, the couple to be living together at or about the time of conception or to have cohabited at any time between 44 and 20 weeks before birth.

CHAPTER 3: DONOR GAMETE CONCEPTION

Aim

To review the laws that allocate parenthood when children are conceived by donor gametes. In these situations the children’s social parents (caregivers) are usually genetic/non-genetic parent combinations.

To consider how the law might recognise children’s relationships with their social parents, genetic parents and their gestational mother.

To examine assumptions about how many parents a child should have in law.

Current situation

• The Status of Children Amendment Act 1987 transfers full parental status from the sperm donor to the mother’s spouse or male partner automatically. Sperm and egg donors lose status as parents and all parental rights and responsibilities.

• Where a single woman or a woman in a lesbian relationship conceives using donor sperm the law does not extinguish the parenthood of the donor but removes the donor’s parental rights and liabilities towards the child. It does not transfer parental status to a same-sex partner of the mother, as it does to opposite-sex partners, but will do so under proposals in the Care of Children Bill. The Bill will also extinguish the parenthood of the sperm donor in these situations, as it does in heterosexual-couple donor conceptions.

• If a woman conceives a child using a donated egg or embryo she is deemed to be the child’s full legal parent. The parenthood of the donor is extinguished along with all her parental rights and responsibilities.

Issues

• These laws have benefits in that they provide the social parent who is not genetically related to the child with legal parental status in a simple and straightforward manner. However, they create a legal fiction and, what some term “deceit”, in that the mother’s husband or partner is held out in law to be the child’s genetic parent.

• The current rules also create problems when it is intended that the donor will play a parental role in the child’s life. Such agreements often exist where a same-sex couple is involved. The donor’s rights and liabilities as a parent are extinguished.

• The assumption underlying the current rules is that the child will have two opposite-sex parents. When a child is raised by three or four adults who share parental responsibilities, or by two same-sex parents, the law does not recognise the reality of the parenting arrangements. A child born to a single woman or to a woman in a same-sex relationship where conception has been achieved with donor sperm has only one legal parent, but retains a nominal genetic father who has no rights and liabilities towards the child. Under proposals in the Care of Children Bill, the child’s genetic father would have no legally recognised parental status at all, not even as the genetic father.

What might be done (options set out in chapters 5 and 7)

• Create a register held by the Registrar-General of Births, Deaths and Marriages to record full details of the genetic parents of all donor-conceived children. (The Human Assisted Reproductive Technology Bill makes provision for a full record of such details to be held at the clinic and passed onto the Registrar-General after 50 years or on closure of the clinic, with only brief details being held by the Registrar-General.)

• Require that the birth certificate of every donor-conceived child be annotated to indicate in some way that the child was conceived with donated gametes.

• Provide that donor-conceived children shall have two birth certificates – a private one that records genetic parenthood and a public one that records social parenthood. Where egg donation was involved, it might list two mothers: the genetic mother and the gestational mother. In this way, donor-conceived children would have an accurate record of their genetic, gestational and social parents and no child would have only one recorded parent.

• Require fertility clinics to provide counselling for parents as part of donor gamete treatment as to the benefits of telling their child the circumstances of their conception.

• Place a legal duty on parents to tell their children of the true circumstances of their conception.

• Make changes to the law so that a child might have two legal parents of the same sex, and more than two legal parents, and that the names of all such parents be shown on the child’s public birth certificate.

• Continue to reallocate full parenthood by deeming the mother’s spouse or partner (whether male or female) to be the child’s joint parent and extinguishing the parental status of any gamete donor. (The current law with the addition of a same-sex partner as in the Care of Children Bill.)

• Continue to reallocate parenthood via statutory deeming provision, but amend the law so the donor’s genetic parenthood is recognised but the rights and responsibilities of parenthood are transferred.

• Enable a partner, spouse, donor, donor’s partner or other person to obtain a court order giving them joint parental status and joint responsibility for the care and upbringing of the child with the parent. This might be termed a parental status order and a fast-track process might be established so that the order was made before birth to come into effect upon birth.

• Reallocate parenthood by granting non-genetic parents automatic guardianship on the birth of the child. A new status of “enduring guardianship” might be created to take effect from birth and to continue for the lifetime of guardian and child.

• Require both parents to apply to the Family Court for a guardianship order, which would make the genetic parent a parent for all purposes and the non-genetic parent a guardian.

• Require the non-genetic parent to apply to the Family Court for an adoption order, while the genetic parent sought guardianship.

CHAPTER 4: SURROGACY

Aim

To ensure the child conceived in a surrogacy arrangement is gestated and cared for after birth by adults who are emotionally stable and secure in their relationships with the child.

To ensure the child will have knowledge of both his or her genetic parents and the gestational mother, where these adults are not raising the child.

To ensure the gestational mother of a child born to a surrogacy arrangement has legal protections before conception, during pregnancy and after birth to prevent the mother being forced or pressured to hand over the child to others.

To ensure that the commissioning parents of children born into surrogacy arrangements are supported by a legal parent–child framework that enables them to take on the responsibilities and exercise the rights of legal parents.

Current situation

There is a mismatch between the agreement entered into by parties to a surrogacy arrangement and their legal status in relation to the child. Under current law, the surrogate mother is the child’s legal mother and she and her partner or husband have parental rights and responsibilities, even though it is planned that the child will be raised by the commissioning parents. The commissioning parents have no recognised legal relationship with the child, even where they are the genetic parents and have been the child’s primary caregivers from birth.

Commissioning parents can only acquire legal parenthood by adoption. There are serious obstacles. The Adoption Act 1955 makes it unlawful for anyone to have a child in their home with a view to adoption without prior approval of the Department of Child, Youth and Family Services. The Act forbids advertising and payments for a child and creates a legal fiction that the adoptive parents are the child’s genetic and gestational parents, whether or not they are. The Act creates uncertainty for the child as well as the adults until the adoption order is made.

What might be done (options as set out in chapters 5 and 7)

Parental status order

• Commissioning parents could apply to the Court prior to birth of the child for a parental status order. This could be granted on condition that it would take effect after a specified period after birth, during which time the surrogate mother could seek to have the order set aside. However, the child could be cared for from birth by the commissioning parents.

• There may be conditions that have to be met before an order could be made: for example, a requirement that one of the commissioning couple is the genetic parent; that the commissioning couple and surrogate mother have independent legal advice and independent and joint counselling.

• If the surrogate mother made application to set the parental status order aside, the Court would determine the issue on the basis of the child’s welfare and best interests. There might be a rebuttable presumption that if the child was the full genetic child of the commissioning parents they would be awarded custody.

• The effect of a parental status order would be to bestow on the commissioning parents all the rights and responsibilities of parenthood, but not genetic parenthood unless they are genetic parents. It would extinguish the parental rights and responsibilities of the surrogate mother and her partner, unless the parties wished otherwise.

Guardianship

• The commissioning parents could apply to the Family Court to be appointed joint guardians of the child. If a guardianship order was granted it would give them the parental rights and responsibilities of a natural parent. There might be provision for an “enduring guardianship” order, which would create a legal relationship with succession rights beyond 18 years.

Adoption

• Changes might be made to the Adoption Act 1955 so that adoption orders could be made before birth to take effect after birth. The surrogate mother would have a specified period in which to apply to have the orders set aside.

• When such an order was made the child could be cared for from birth in the home of the commissioning parents.

• Conditions might be set on who could adopt in this way and requirements for joint counselling, independent legal advice and approval of the commissioning parents by the Department of Child, Youth and Family Services might be established.

• Where the child was the genetic child of one of the adopting parents some pre-conditions might be waived, such as the need for Department of Child, Youth and Family Services approval.

• The law might be changed so that, in a surrogacy situation, the man and/or woman whose gametes were used to achieve conception would be deemed to be the child’s legal parents from birth.

CHAPTER 5: CHILDREN AND IDENTITY

Aim

To ensure all children have an accurate record, available to them, of their birth and genetic origins.

Issues

• Official statistics indicate that a significant number of children do not have their father’s name listed on their birth certificate.

• Other children have mothers and fathers listed on the birth certificate who are not their genetic parents. These people may have been presumed or deemed by law to be legal parents (by way of the presumption of parenthood, adoption and donor gamete conceptions in opposite-sex relationships) or they may have been wrongly or mistakenly registered as parents when the birth was notified.

• There is a growing body of research and information that indicates that many children need to know their genetic background to complete their sense of identity and to be able to adjust and function fully. The law needs to find ways to ensure that children have access to this information, while at the same time strengthening and supporting the critical role played by a child’s social parents.

What might be done

Fathers whose names and details are not recorded in a child’s birth information

• A state agency might be given the responsibility of identifying and registering parents who are not named on the child’s birth certificate.

Children born by donor gamete conception and surrogacy (where a child is usually raised by a genetic/non-genetic parent combination)

• Clinics might be required to educate parents as to the importance of telling their children of their true genetic and birth origins, or there may be a duty placed on parents to tell their children.

• The names and details of the genetic and gestational parents of all donor-conceived children or children born to a surrogate mother, whether in a clinic or through private arrangements, might be recorded in a register held by a state agency. The information could be accessed by the child or, in the case of young children, by guardians on the child’s behalf.

• The child’s birth certificate might be annotated so as to indicate that parenthood is not genetic, for example, by adding the words “by donor”; or “by section 4 Status of Children Amendment Act 1987”.

• A system of dual birth certificates might be implemented. The publicly accessible certificate would record the child’s social parents. A second certificate would contain the child’s full genetic and birth history and could be accessed only by the child and those persons recorded on it.

CHAPTER 6: AGREEMENTS

Aim

To make greater use of agreements in situations where there are more than two adults involved in the conception, birth and raising of a child to ensure legal certainty and clarity as to the individual parental responsibilities and rights of the adults towards the child and the responsibilities they have towards each other.

Issues

Many children have more than two adults involved in their conception, birth and day-to-day care. Typically, these children will be conceived via donor gametes; born into surrogacy arrangements or born into gay and lesbian-led families.

The law is a blunt instrument in the allocation of parental responsibilities in these cases, and works on a paradigm of two parents of opposite sex. It would be almost impossible for the law to anticipate and cover the variety of parental arrangements chosen by the adults involved.

Agreements are a means by which the intentions and undertakings of the parties could be recorded from the outset so that the legal status of those involved will be tailor-made to the circumstances of the individual families.

What might be done

• Adults involved in the conception, birth and raising of children might be given the power to register agreements in the Family Court that they have made as to the parental rights, responsibilities and intended parental status of all parties.

• Once registered, the terms of the agreements could be enforced subject to the best interest of the child as the overriding factor.

• Before registration, the adults could be required to have had independent legal advice and separate and joint counselling.

• Registered agreements could be declared to be evidence to be given weight by the Court when considering applications for adoption, guardianship, or parental status orders.

CHAPTER 7: OPTIONS

Aim

To provide a number of possible options for a legal framework that would reallocate parenthood in situations where children are not raised by both of their genetic parents or their gestational mother. Typically, these children will be conceived via donor gametes; born into surrogacy arrangements or born into gay and lesbian-led families.

Issues

The current legal framework often creates a mismatch between the legal responsibilities and rights of parenthood and the intentions and practical arrangements of those adults involved in the child’s conception, birth and care. Where it does not create a mismatch, it nevertheless creates a legal fiction by hiding the fact that the child’s genetic parents are not the social parents. It denies the child the opportunity to find this out in the future.

It is proposed that the following guiding principles be applied when weighing up options. These are:

• The best interests of the child should be paramount.

• Children have a right to know the circumstances of their conception and birth.

• Persons raising children from birth as “parents” should have the legal responsibilities and rights necessary to nurture and rear the child.

• All families, where children are being raised, need legal rules relating to parenthood that address the contributions and intentions of the adults in them.

• A child can have a number of committed and co-operative adults involved in his or her upbringing, provided that these people always have clear lines of responsibility and mechanisms for dealing with conflict.

• Children should be given the opportunity to express their views on matters that affect them, and have their views taken into account.

What might be done (set out also in chapter summary 4 and 5)

Legal responsibilities and rights might be reallocated in a number of different ways. These are:

• By retaining the status quo but making adjustments to address current difficulties.

• Reallocating parenthood by means of a “parental status order”.

• Reallocating parenthood by means of an adoption order but amending adoption law to resolve current difficulties.

• Reallocating parenthood by way of an “enduring guardianship” order.

CHAPTER 8: PROVING AND DISPROVING PARENTHOOD

Aim

To provide clear and just processes for determining the genetic parenthood of children.

Issues

If a child is born within marriage, the child is presumed to be a child of the birth mother and her husband, unless there is evidence to the contrary. If a child is born outside marriage no presumption is made as to who the father is. Hence, scientific testing to prove and disprove paternity is critical in some cases. Children can now be born to a woman with whom they have no genetic connection, although she is their legal mother. There may be occasions where the genetic mother or the child wants legal recognition as a genetic parent. Should she also be able to seek a declaration of maternity?

Particular issues arise in relation to the way in which DNA parentage testing is used to establish legal parenthood. Questions arise as to how tests are carried out and by whom; the invasive nature of DNA blood sampling; the consents necessary for tests to be carried out; the Court’s inability to enforce compliance with its recommendations for testing; and the use of babies’ stored blood samples (“Guthrie tests”) for DNA parentage testing.

What might be done

• Establish a legal process for establishing the genetic motherhood of a child. Should she be able to seek a declaration of maternity, even though she did not give birth to the child?

• Impose controls on DNA parentage testing by regulating service providers through a system of accreditation; by introducing a Code of Practice for providers, similar to that in the United Kingdom; or by requiring that tests be conducted only pursuant to a court order.

• Allow DNA parentage testing to be carried out on bodily samples other than blood samples, for example, buccal (mouth) swabs or hair follicles.

• Impose sanctions for a failure to comply with a court order for testing.

• Give the Court power to grant or refuse consent for a child to be tested in cases where the child’s guardians cannot agree.

• Require that the consent of children be obtained for DNA parentage testing where they have the required knowledge, competence and maturity to give a free and informed consent.

• Regulate third party access to babies’ Guthrie tests for the purposes of DNA parentage testing where the child’s guardian refuses consent.

Chapter summaries

The Minister Responsible for the Law Commission has asked the Law Commission to review the legal rules that determine parenthood. In particular, we have been requested to examine the assumptions that underlie the current law, including issues relating to fatherhood; what values to attach to genetic, caregiving and gestational parenthood; how many parents a child can have in law; how to determine parenthood in surrogacy arrangements. We also consider the value to be attached to parenthood agreements between adults, and the processes for proving and disproving parenthood.

This review is necessary because of the number and diversity of family forms now existing in New Zealand. At least a third of our children live outside the nuclear family model comprised of a genetic mother and father raising their children together in a separate household.

Our parental status laws have evolved from this nuclear family model. It is therefore timely to review whether the law is providing the necessary legal structures for families outside this model and the individuals within them. Our laws must respond to the needs of all the country’s families. They each require a legal framework that will provide certainty and clarify the responsibilities and rights of the adults within them. In that way children are supported. Children’s needs and interests are the overarching principle underlying the review.

The paper proceeds by identifying the legal principles that underpin our law, identifying the problem areas, and suggesting possible options. Many of the matters discussed are complex and require an understanding not only of current legal provisions but also of proposed changes foreshadowed in the Care of Children Bill and the Human Assisted Reproductive Technology Bill. We have provided brief chapter summaries to assist readers to navigate around the document.

We seek a response from all sectors of society – many citizens have an interest in family laws. We are also particularly interested in hearing from families affected by the issues discussed here and those for whom the current laws do not give adequate protection and support. Following analysis of those responses we will report to the Minister on the current laws with recommendations for any areas that may need alterations.

Although the discussion paper includes many questions, respondents should feel free to deal with only those matters most relevant to them. Should groups so request, Law Commission personnel will meet with them , as available, to hear views expressed orally and/or to provide clarification on matters raised in the paper.

In preparing this discussion paper we undertook a preliminary round of consultations with a small number of key organisations and individuals. We record our thanks for the help we have received from them and also from our peer reviewers who have commented on drafts. Their names appear below.

The Commissioner in charge of preparing this discussion paper was Frances Joychild. She was assisted by legal researchers Robert Ludbrook, Claire Phillips and Helen Colebrook.

Submissions or comments on this discussion paper should be sent by 24 May 2004 to Claire Phillips, Law Commission, PO Box 2590, DX SP23534, Wellington, or by email to parenthood@lawcom.govt.nz.

Any inquiries or informal comments can be directed to Claire Phillips (phone (04) 914 4826) or Susan Hall (phone (04) 914 4819).

This discussion paper is also available on the internet at the Commission’s website: http://www.lawcom.govt.nz.

Parenthood, guardianship and parental responsibilities

Access

A person who obtains an access order from the Family Court has the right to contact with the child. In most cases only a parent or step-parent may apply for an access order.

Custody

A person who obtains a custody order from the Family Court has the right to have a child live with them and has the responsibility to attend to the child’s day-to-day care. Where parents who have separated cannot agree where the child will live they can ask the Family Court to make a custody order. Non-parents can ask the Court to grant them custody of a child but the Court must first give them leave to apply.

Genetic parents

Those persons whose eggs or sperm have been used to create a child.

Gestational mother

The woman who gives birth to the child and who may or may not be the child’s genetic mother.

Guardian

Most parents are automatically guardians of their children. People who are not parents can be appointed a guardian by the Family Court where such appointment is in the child’s best interests.

Guardian’s responsibilities and rights

A guardian is responsible for the child’s upbringing and has a right and duty (jointly with the child’s other guardian or guardians) to make decisions on important matters affecting the child, for example, the child’s names, manner of education and choice of school, medical treatment and religion. A guardian is entitled to have the child in her or his personal care unless there is a court order giving sole custody to someone else.

Paramountcy principle

This principle (sometimes called the “child’s best interests” or the “welfare principle”) is the overarching principle by which the Family Court decides matters to do with children. The Guardianship Act 1968 states that the Court, in making decisions about children, must regard the welfare of the child as the first and paramount consideration.

Parenthood

In law, the child’s mother is the woman who gives birth to the child, and the child’s father is the man with whose sperm the child was conceived. They are the child’s legal parents. Parenthood alone does not give parental responsibilities and rights for a child. That is given by guardianship.

Legal parenthood can also be acquired by people with no genetic connection to the child by means of an adoption order or by statutory deeming provision (in the case of children conceived with donated gametes).

There is a legal presumption that a woman’s husband is the father of a child born within marriage or within 10 months of the marriage being dissolved. The presumption may be rebutted in cases where there is evidence that another man is the child’s genetic father.

Social parent(s)

Those persons who have taken on the responsibility for the upbringing of the child, who may or may not be child’s genetic parents or the woman who gave birth to the child.

Mäori

Atawhai

An orphan or adopted child, sometimes used interchangeably with “whängai”.

Hapü

A larger village community, sub-tribe.

Karakia

A prayer or chant, often used to open or close a meeting.

Iwi

A regionally based kin group, which claims descent from a single distant ancestor, tribe.

Mätauranga

Information, knowledge, education.

Matua whängai

A member of a child’s family who takes on the responsibility of caring for a whängai.

Tapu

Sacred, forbidden, taboo.

Whakapapa

A person’s genealogy, cultural identity, family tree. It is also said to be the glue that holds the Mäori world together.

Whänau

The extended family, which has been the basic social unit of Mäori society. It usually included grandparents or great grandparents and their direct descendants.

Whanaungatanga

The centrality of family relationships to the Mäori way of life.

Whängai (tamaiti whängai)

A child given by the parents to family members to raise, where the child remains aware who his or her birth parents are and what his or her whakapapa is.

Assisted human reproduction

Assisted human reproduction (AHR)

A range of procedures designed to assist a couple or an individual to conceive a child with medical assistance. Procedures may involve the use of donated sperm, eggs or a donated embryo to bring about conception.

Donor

A person who gives an egg or sperm to assist another or others to conceive a child.

Donor-conceived child (donor offspring)

A person conceived and born as a result of donated egg, sperm or embryo.

Donor eggs

Eggs (oocytes or ovum) that have been given by one woman to another for use in human conception.

Donor embryo

An embryo that is given by the persons whose gametes created it, for use by another in human conception. The procedure of embryo donation is not yet carried out in New Zealand.

Donor gamete conception

Conception achieved using donor sperm or a donor egg without sexual intercourse, either:

• with medical assistance or the assistance of a fertility clinic; or

• through self-insemination.

Donor sperm

Sperm, contained within semen, that has been donated by a male to a person who is not his wife or partner for use in human conception.

Embryo

A term used to refer to a fertilised egg (or “zygote”) until approximately the end of the eighth week of gestation.

Gametes

Human cells necessary for sexual reproduction, that is, eggs in women and sperm on men.

Intracytoplasmic sperm injection (ICSI)

A single sperm is retrieved directly from the testes with a fine needle, or from ejaculated semen, and injected directly into an egg. The fertilised egg is then transferred to the uterus.

In vitro fertilisation (IVF)

Fertilisation occurring outside the human body where eggs, collected from a woman, are fertilised with sperm in a laboratory – usually in a dish or test tube.

Self-insemination

A procedure by which semen is inserted by a woman into her vagina without medical assistance (typically by using a needle-less syringe).

Semen

Fluid containing sperm that is released from the male genital tract.

Sperm

Male reproductive cells necessary for the fertilisation of an egg.

Surrogacy

Commissioning parent(s)

The person or persons in a surrogacy arrangement who arrange for the surrogate mother to gestate and give birth to a child for them to raise from birth. The commissioning parents are always the social parents of the child. One or both of them may also be the child’s genetic parent(s) if their gametes were used in conception.

Full surrogacy (IVF)

Refers to arrangements in which the gametes of commissioning parents and/or a donor or donors are used in conception.

Surrogacy

An arrangement in which a woman agrees to carry and give birth to a child for another person or persons to raise. Surrogacy agreements may be altruistic (unpaid) or for financial reward.

Surrogate mother

A woman who agrees to gestate and give birth to a child for another person or persons (the commissioning parents) to raise from birth. A surrogate mother is always the gestational mother of the child, and may also be the child’s genetic mother if her egg is used in conception.

Traditional or partial surrogacy

Refers to arrangements in which the surrogate mother’s own eggs are used to achieve conception, either with the assistance of a fertility clinic or through self-insemination with the semen of the commissioning father or of a donor.

CHAPTER 1: INTRODUCTION

Aim

The Introduction sets out key background information for readers to have when considering the issues raised in this discussion paper. Specifically it:

• Summarises legal concepts of parenthood in New Zealand law, explaining that our laws are based on a two genetic parent cohabitation model.

• Discusses the changes to family structures that have occurred in New Zealand in recent decades and also the developments in donor gamete conception. The result of the above is that in many situations children are being raised from birth by people who are not their genetic parents.

• Raises issues relative to information recorded on birth certificates and notes that birth certificates do not always contain a full or accurate record of a child’s genetic lineage.

• Records that New Zealand’s parental status laws have never reflected customary laws and practices of Mäori, particularly in relation to whängai.

• Summaries the Terms of Reference that underpin this discussion paper.

• Indicates that the overarching principle adopted in the preparation of this paper is the needs and interests of children.

• Explains that the focus in this review is on the people and children for whom the current rules provide inadequate support or protection.

• Explains that issues involving contested custody and access, step and foster parenting and the status of whängai are not part of the review.

CHAPTER 2: PARENTHOOD, GUARDIANSHIP AND PATERNITY

Aim

To set out what the current parenthood and guardianship laws are and to review laws relating to fatherhood.

Issues

The current law presumes a man to be the father of any child born to his wife during their marriage or within 10 months of the marriage being dissolved. If the mother and father of a child are not married, but are living together, there is no presumption that he is the father of her child born during their relationship.

They must each sign the birth registration form that he is the father. Where contested, fatherhood can be proved to an extremely high degree of reliability by DNA testing.

Is the presumption of paternity still a useful and appropriate way to determine fatherhood? If retained, should the presumption of paternity be extended so that it applies to men who are living with the mother of the child at or about the time of conception?

What might be done

Presumption of paternity

• Keep the presumption that a married man is the father of a child born to his wife during their marriage.

• Alter the presumption so that it only applies to married men who are living with the mother at or about the time of conception.

• Remove the presumption.

• Extend the presumption to de facto partners the child’s mother.

• Extend the presumption to men in de facto relationships but apply various other conditions that require, for example, the couple to be living together at or about the time of conception or to have cohabited at any time between 44 and 20 weeks before birth.

CHAPTER 3: DONOR GAMETE CONCEPTION

Aim

To review the laws that allocate parenthood when children are conceived by donor gametes. In these situations the children’s social parents (caregivers) are usually genetic/non-genetic parent combinations.

To consider how the law might recognise children’s relationships with their social parents, genetic parents and their gestational mother.

To examine assumptions about how many parents a child should have in law.

Current situation

• The Status of Children Amendment Act 1987 transfers full parental status from the sperm donor to the mother’s spouse or male partner automatically. Sperm and egg donors lose status as parents and all parental rights and responsibilities.

• Where a single woman or a woman in a lesbian relationship conceives using donor sperm the law does not extinguish the parenthood of the donor but removes the donor’s parental rights and liabilities towards the child. It does not transfer parental status to a same-sex partner of the mother, as it does to opposite-sex partners, but will do so under proposals in the Care of Children Bill. The Bill will also extinguish the parenthood of the sperm donor in these situations, as it does in heterosexual-couple donor conceptions.

• If a woman conceives a child using a donated egg or embryo she is deemed to be the child’s full legal parent. The parenthood of the donor is extinguished along with all her parental rights and responsibilities.

Issues

• These laws have benefits in that they provide the social parent who is not genetically related to the child with legal parental status in a simple and straightforward manner. However, they create a legal fiction and, what some term “deceit”, in that the mother’s husband or partner is held out in law to be the child’s genetic parent.

• The current rules also create problems when it is intended that the donor will play a parental role in the child’s life. Such agreements often exist where a same-sex couple is involved. The donor’s rights and liabilities as a parent are extinguished.

• The assumption underlying the current rules is that the child will have two opposite-sex parents. When a child is raised by three or four adults who share parental responsibilities, or by two same-sex parents, the law does not recognise the reality of the parenting arrangements. A child born to a single woman or to a woman in a same-sex relationship where conception has been achieved with donor sperm has only one legal parent, but retains a nominal genetic father who has no rights and liabilities towards the child. Under proposals in the Care of Children Bill, the child’s genetic father would have no legally recognised parental status at all, not even as the genetic father.

What might be done (options set out in chapters 5 and 7)

• Create a register held by the Registrar-General of Births, Deaths and Marriages to record full details of the genetic parents of all donor-conceived children. (The Human Assisted Reproductive Technology Bill makes provision for a full record of such details to be held at the clinic and passed onto the Registrar-General after 50 years or on closure of the clinic, with only brief details being held by the Registrar-General.)

• Require that the birth certificate of every donor-conceived child be annotated to indicate in some way that the child was conceived with donated gametes.

• Provide that donor-conceived children shall have two birth certificates – a private one that records genetic parenthood and a public one that records social parenthood. Where egg donation was involved, it might list two mothers: the genetic mother and the gestational mother. In this way, donor-conceived children would have an accurate record of their genetic, gestational and social parents and no child would have only one recorded parent.

• Require fertility clinics to provide counselling for parents as part of donor gamete treatment as to the benefits of telling their child the circumstances of their conception.

• Place a legal duty on parents to tell their children of the true circumstances of their conception.

• Make changes to the law so that a child might have two legal parents of the same sex, and more than two legal parents, and that the names of all such parents be shown on the child’s public birth certificate.

• Continue to reallocate full parenthood by deeming the mother’s spouse or partner (whether male or female) to be the child’s joint parent and extinguishing the parental status of any gamete donor. (The current law with the addition of a same-sex partner as in the Care of Children Bill.)

• Continue to reallocate parenthood via statutory deeming provision, but amend the law so the donor’s genetic parenthood is recognised but the rights and responsibilities of parenthood are transferred.

• Enable a partner, spouse, donor, donor’s partner or other person to obtain a court order giving them joint parental status and joint responsibility for the care and upbringing of the child with the parent. This might be termed a parental status order and a fast-track process might be established so that the order was made before birth to come into effect upon birth.

• Reallocate parenthood by granting non-genetic parents automatic guardianship on the birth of the child. A new status of “enduring guardianship” might be created to take effect from birth and to continue for the lifetime of guardian and child.

• Require both parents to apply to the Family Court for a guardianship order, which would make the genetic parent a parent for all purposes and the non-genetic parent a guardian.

• Require the non-genetic parent to apply to the Family Court for an adoption order, while the genetic parent sought guardianship.

CHAPTER 4: SURROGACY

Aim

To ensure the child conceived in a surrogacy arrangement is gestated and cared for after birth by adults who are emotionally stable and secure in their relationships with the child.

To ensure the child will have knowledge of both his or her genetic parents and the gestational mother, where these adults are not raising the child.

To ensure the gestational mother of a child born to a surrogacy arrangement has legal protections before conception, during pregnancy and after birth to prevent the mother being forced or pressured to hand over the child to others.

To ensure that the commissioning parents of children born into surrogacy arrangements are supported by a legal parent–child framework that enables them to take on the responsibilities and exercise the rights of legal parents.

Current situation

There is a mismatch between the agreement entered into by parties to a surrogacy arrangement and their legal status in relation to the child. Under current law, the surrogate mother is the child’s legal mother and she and her partner or husband have parental rights and responsibilities, even though it is planned that the child will be raised by the commissioning parents. The commissioning parents have no recognised legal relationship with the child, even where they are the genetic parents and have been the child’s primary caregivers from birth.

Commissioning parents can only acquire legal parenthood by adoption. There are serious obstacles. The Adoption Act 1955 makes it unlawful for anyone to have a child in their home with a view to adoption without prior approval of the Department of Child, Youth and Family Services. The Act forbids advertising and payments for a child and creates a legal fiction that the adoptive parents are the child’s genetic and gestational parents, whether or not they are. The Act creates uncertainty for the child as well as the adults until the adoption order is made.

What might be done (options as set out in chapters 5 and 7)

Parental status order

• Commissioning parents could apply to the Court prior to birth of the child for a parental status order. This could be granted on condition that it would take effect after a specified period after birth, during which time the surrogate mother could seek to have the order set aside. However, the child could be cared for from birth by the commissioning parents.

• There may be conditions that have to be met before an order could be made: for example, a requirement that one of the commissioning couple is the genetic parent; that the commissioning couple and surrogate mother have independent legal advice and independent and joint counselling.

• If the surrogate mother made application to set the parental status order aside, the Court would determine the issue on the basis of the child’s welfare and best interests. There might be a rebuttable presumption that if the child was the full genetic child of the commissioning parents they would be awarded custody.

• The effect of a parental status order would be to bestow on the commissioning parents all the rights and responsibilities of parenthood, but not genetic parenthood unless they are genetic parents. It would extinguish the parental rights and responsibilities of the surrogate mother and her partner, unless the parties wished otherwise.

Guardianship

• The commissioning parents could apply to the Family Court to be appointed joint guardians of the child. If a guardianship order was granted it would give them the parental rights and responsibilities of a natural parent. There might be provision for an “enduring guardianship” order, which would create a legal relationship with succession rights beyond 18 years.

Adoption

• Changes might be made to the Adoption Act 1955 so that adoption orders could be made before birth to take effect after birth. The surrogate mother would have a specified period in which to apply to have the orders set aside.

• When such an order was made the child could be cared for from birth in the home of the commissioning parents.

• Conditions might be set on who could adopt in this way and requirements for joint counselling, independent legal advice and approval of the commissioning parents by the Department of Child, Youth and Family Services might be established.

• Where the child was the genetic child of one of the adopting parents some pre-conditions might be waived, such as the need for Department of Child, Youth and Family Services approval.

• The law might be changed so that, in a surrogacy situation, the man and/or woman whose gametes were used to achieve conception would be deemed to be the child’s legal parents from birth.

CHAPTER 5: CHILDREN AND IDENTITY

Aim

To ensure all children have an accurate record, available to them, of their birth and genetic origins.

Issues

• Official statistics indicate that a significant number of children do not have their father’s name listed on their birth certificate.

• Other children have mothers and fathers listed on the birth certificate who are not their genetic parents. These people may have been presumed or deemed by law to be legal parents (by way of the presumption of parenthood, adoption and donor gamete conceptions in opposite-sex relationships) or they may have been wrongly or mistakenly registered as parents when the birth was notified.

• There is a growing body of research and information that indicates that many children need to know their genetic background to complete their sense of identity and to be able to adjust and function fully. The law needs to find ways to ensure that children have access to this information, while at the same time strengthening and supporting the critical role played by a child’s social parents.

What might be done

Fathers whose names and details are not recorded in a child’s birth information

• A state agency might be given the responsibility of identifying and registering parents who are not named on the child’s birth certificate.

Children born by donor gamete conception and surrogacy (where a child is usually raised by a genetic/non-genetic parent combination)

• Clinics might be required to educate parents as to the importance of telling their children of their true genetic and birth origins, or there may be a duty placed on parents to tell their children.

• The names and details of the genetic and gestational parents of all donor-conceived children or children born to a surrogate mother, whether in a clinic or through private arrangements, might be recorded in a register held by a state agency. The information could be accessed by the child or, in the case of young children, by guardians on the child’s behalf.

• The child’s birth certificate might be annotated so as to indicate that parenthood is not genetic, for example, by adding the words “by donor”; or “by section 4 Status of Children Amendment Act 1987”.

• A system of dual birth certificates might be implemented. The publicly accessible certificate would record the child’s social parents. A second certificate would contain the child’s full genetic and birth history and could be accessed only by the child and those persons recorded on it.

CHAPTER 6: AGREEMENTS

Aim

To make greater use of agreements in situations where there are more than two adults involved in the conception, birth and raising of a child to ensure legal certainty and clarity as to the individual parental responsibilities and rights of the adults towards the child and the responsibilities they have towards each other.

Issues

Many children have more than two adults involved in their conception, birth and day-to-day care. Typically, these children will be conceived via donor gametes; born into surrogacy arrangements or born into gay and lesbian-led families.

The law is a blunt instrument in the allocation of parental responsibilities in these cases, and works on a paradigm of two parents of opposite sex. It would be almost impossible for the law to anticipate and cover the variety of parental arrangements chosen by the adults involved.

Agreements are a means by which the intentions and undertakings of the parties could be recorded from the outset so that the legal status of those involved will be tailor-made to the circumstances of the individual families.

What might be done

• Adults involved in the conception, birth and raising of children might be given the power to register agreements in the Family Court that they have made as to the parental rights, responsibilities and intended parental status of all parties.

• Once registered, the terms of the agreements could be enforced subject to the best interest of the child as the overriding factor.

• Before registration, the adults could be required to have had independent legal advice and separate and joint counselling.

• Registered agreements could be declared to be evidence to be given weight by the Court when considering applications for adoption, guardianship, or parental status orders.

CHAPTER 7: OPTIONS

Aim

To provide a number of possible options for a legal framework that would reallocate parenthood in situations where children are not raised by both of their genetic parents or their gestational mother. Typically, these children will be conceived via donor gametes; born into surrogacy arrangements or born into gay and lesbian-led families.

Issues

The current legal framework often creates a mismatch between the legal responsibilities and rights of parenthood and the intentions and practical arrangements of those adults involved in the child’s conception, birth and care. Where it does not create a mismatch, it nevertheless creates a legal fiction by hiding the fact that the child’s genetic parents are not the social parents. It denies the child the opportunity to find this out in the future.

It is proposed that the following guiding principles be applied when weighing up options. These are:

• The best interests of the child should be paramount.

• Children have a right to know the circumstances of their conception and birth.

• Persons raising children from birth as “parents” should have the legal responsibilities and rights necessary to nurture and rear the child.

• All families, where children are being raised, need legal rules relating to parenthood that address the contributions and intentions of the adults in them.

• A child can have a number of committed and co-operative adults involved in his or her upbringing, provided that these people always have clear lines of responsibility and mechanisms for dealing with conflict.

• Children should be given the opportunity to express their views on matters that affect them, and have their views taken into account.

What might be done (set out also in chapter summary 4 and 5)

Legal responsibilities and rights might be reallocated in a number of different ways. These are:

• By retaining the status quo but making adjustments to address current difficulties.

• Reallocating parenthood by means of a “parental status order”.

• Reallocating parenthood by means of an adoption order but amending adoption law to resolve current difficulties.

• Reallocating parenthood by way of an “enduring guardianship” order.

CHAPTER 8: PROVING AND DISPROVING PARENTHOOD

Aim

To provide clear and just processes for determining the genetic parenthood of children.

Issues

If a child is born within marriage, the child is presumed to be a child of the birth mother and her husband, unless there is evidence to the contrary. If a child is born outside marriage no presumption is made as to who the father is. Hence, scientific testing to prove and disprove paternity is critical in some cases. Children can now be born to a woman with whom they have no genetic connection, although she is their legal mother. There may be occasions where the genetic mother or the child wants legal recognition as a genetic parent. Should she also be able to seek a declaration of maternity?

Particular issues arise in relation to the way in which DNA parentage testing is used to establish legal parenthood. Questions arise as to how tests are carried out and by whom; the invasive nature of DNA blood sampling; the consents necessary for tests to be carried out; the Court’s inability to enforce compliance with its recommendations for testing; and the use of babies’ stored blood samples (“Guthrie tests”) for DNA parentage testing.

What might be done

• Establish a legal process for establishing the genetic motherhood of a child. Should she be able to seek a declaration of maternity, even though she did not give birth to the child?

• Impose controls on DNA parentage testing by regulating service providers through a system of accreditation; by introducing a Code of Practice for providers, similar to that in the United Kingdom; or by requiring that tests be conducted only pursuant to a court order.

• Allow DNA parentage testing to be carried out on bodily samples other than blood samples, for example, buccal (mouth) swabs or hair follicles.

• Impose sanctions for a failure to comply with a court order for testing.

• Give the Court power to grant or refuse consent for a child to be tested in cases where the child’s guardians cannot agree.

• Require that the consent of children be obtained for DNA parentage testing where they have the required knowledge, competence and maturity to give a free and informed consent.

• Regulate third party access to babies’ Guthrie tests for the purposes of DNA parentage testing where the child’s guardian refuses consent.


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