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Summary of questions

chapter 2: parenthood, guardianship and paternity

Statutory presumption of paternity

Q1 Should the presumption of paternity be retained as part of New Zealand law?

Q2 If retained, should the presumption of paternity be extended to a de facto partner of the child’s mother?

Q3 If the presumption of paternity was extended to men in de facto relationships should it be based on cohabitation at any time between 44 and 20 weeks before the birth of the child (as in some Australian States) or on some other basis?

CHAPTER 5: children and identity

Registers

Q4 Should children conceived of donor gametes be able to obtain full donor background information from a database held by the Registrar-General of Births, Deaths and Marriages as well as from the clinic that provided the treatment?

Q5 Should the law be extended to allow donor-conceived children under the age of 18 to have access to information on the register about their genetic parents? If so, should there be a lower age or no age restriction?

Q6 If the Supplementary Order Paper to the Human Assisted Reproductive Technology Bill becomes law should steps be taken to assist children conceived prior to its enactment in having access to information about their genetic parents?

Q7 Should children conceived in surrogacy arrangements or private donor gamete conception also be able to obtain information from the Registrar-General’s database?

Q8 What cultural information should be recorded on the Registrar-General’s database? For example, should Mäori donors be required to provide information about their hapu and iwi (tribal affiliations), if they know them?

Birth certificates

Q9 Instead of the register, should children born as a result of donor gamete conception or surrogacy have, in addition to the publicly available birth certificate, a private certificate that records the name, town or city of residence and occupation of all persons involved in their conception and birth including both genetic parents, the gestational mother and social parents?

Q10 Should the official, publicly available birth certificate of a child born as a result of donor gamete conception or surrogacy be annotated to indicate that a person named on it is not the genetic or gestational parent? For example, “by donor”, “by surrogacy” or “by section 4 Status of Children Amendment Act 1987”?

a) If so, what should such annotation say?

b) Should such a notation be optional and made at the discretion of the social parents?

Duties of clinics and parents

Q11 Instead of annotations:

a) should there be a legal obligation imposed on parents to inform their children of the true facts about their conception and birth?;

or

b) should disclosure of such information be left to the discretion of the parents?

Q12 Should clinics be required by law to provide counselling and education and encouragement to recipients to tell their children of their genetic origins? If so, should it be state funded?

Options for achieving higher rates of identified fathers

Q13 Should efforts be made to increase the number of fathers named on birth certificates?

Q14 Should the government be required to make inquiries into the paternity of every child whose name is not shown on the child’s birth certificate, as is done in Sweden?

Q15 Is there merit in any of the approaches adopted in the United States in ensuring that a greater percentage of unmarried fathers are identified in law?

Q16 What other means could be adopted to increase the number of named fathers on birth certificates?

Q17 Are there situations where the father’s details should not appear on the birth certificate?

Children conceived after the death of their father

Q18 Should the name of a deceased father be included on the child’s birth certificate?

Q19 Should the father’s name appear on a birth certificate even if conception takes place years after his death using his frozen, stored sperm?

Q20 Should his name only be included in the child’s birth certificate where he has given written consent during his lifetime for the use of his sperm to achieve conception posthumously?

Q21 Should an intending non-genetic father be able to be registered on the birth certificate of a child conceived through the use of donor sperm, if he knew of and consented to the procedure, but died before the conception and birth of the child?

CHAPTER 7: options (as discussed in chapters 3, 4 and 7)

Option 1: Deeming provisions

Donor gamete conception

Q22 Are the deeming provisions under the Status of Children Amendment Act, which confer parental rights and responsibilities on the non-genetic social parent, the best model for reallocating parenthood?

Q23 Should the genetic parent’s spouse or partner (the non-genetic parent) be deemed the full legal parent automatically upon birth of the child by operation of the law, or should that person have to take some legal steps to obtain parental status?

Q24 Should the deeming mechanism operate so as to extinguish the genetic parenthood of the donor in law, as well as the rights and liabilities of parenthood? (In doing so it will result in children born to single women having only one parent in law.)

Q25 Should the law that allocates parental responsibilities and rights in donor gamete conception be based upon the method of conception (for example, artificial insemination) or on the intention of the parties as to whether the donor’s legal parenthood is to be extinguished?

Deeming provision: surrogacy

Q26 Should the law be amended to deem the commissioning parents to be the child’s parents for all purposes and the gestational mother and her partner not to be the parents? If so, what protections should be put in place for the birth mother?

Option 2: Parental status orders

Q27 Is it better that non-genetic parents apply to the Court to obtain status as parents, rather than simply being “deemed” parents?

Q28 Should the parental status order be made automatically upon proof of a relationship to the genetic parent and the genetic parent’s consent, or should there be a duration of relationship requirement? If so, what should be the minimum duration?

Q29 Should there also be a condition that the non-genetic applicant be screened by a social worker and be approved by the Court as a suitable parent?

Q30 Should the parental status order be made only in respect of the spouse or partner of the genetic mother so that a child has a maximum of two social parents, or should other intending social parents be able to acquire this status?

Q31 If so, should it be granted automatically to the other genetic parent if they apply? For example, to a donor father who provides sperm for a lesbian couple?

Parental status orders: surrogacy

Q32 If a parental status order was made prior to birth, what should be the period of time after birth in which a birth mother has a right to apply to have the order stopped? For example, should there be an automatic right of revocation within 28 days after birth?

Q33 If the birth mother is only the gestational, and not the genetic, mother should she still have the right to refuse to give up the child to the genetic parents?

Q34 Where both commissioning parents are genetic parents of the child should they qualify for a parental status order automatically?

Q35 Should the Court grant a parental status order only if certain conditions are met, such as the commissioning parents being of specified ages or marital status? What other conditions, if any, should be set?

Q36 Where one commissioning parent is a genetic parent should the other gain parental status as of right? If not, what requirements should there be? Should there be, for example, a duration of relationship requirement or a suitability assessment?

Q37 Where neither parent is a genetic parent, should the parents have access to a parental status order, or should they have to adopt the child and be subject to the standard adoption checks as to suitability as parents?

Option 3: Adoption orders

Donor gamete conception

Q38 Is an amended form of adoption a better way to reallocate parental responsibilities? What changes to the Adoption Act 1955 would be necessary to reallocate parenthood in donor gamete conceptions?

Adoption orders: surrogacy

Q39 Where both parents are the genetic parents of the child, should adoption be automatic and fast tracked? Where one is a genetic parent should adoption be automatic and fast tracked?

Q40 Should unmarried commissioning parents (including same-sex couples) be able to adopt the child?

Q41 What changes should there be to adoption law in surrogacy arrangements? For example, should there be any change to the law allowing the child to be cared for by the commissioning parents prior to the adoption and should commissioning parents be able to advertise for a surrogate mother?

Q42 What should be the time period before which the birth mother can give her consent to the adoption?

Option 4: Guardianship orders – donor gamete conception and surrogacy

Q43 What are the advantages of the model of “enduring guardianship”? Is the role of the non-genetic parent recognised adequately by a guardianship order?

Q44 Are commissioning parents of a child born into a surrogacy arrangement recognised adequately through the granting of a guardianship order?

Option 5: Reallocation of parenthood by an agreement – donor gamete conception and surrogacy

Q45 Should agreements as to the allocation of parental rights and responsibilities among involved adults be able to be registered in the Family Court with a presumption that they be enforced according to their terms? Should the presumption be rebutted if it was shown the terms would not accord with the child’s best interests? Would there be any other basis for a rebuttal to be established?

Q46 Alternatively, should the Court be required to determine, as it is now, whether the proposals contained in the parental rights and responsibilities agreement are in the child’s best interests before they are enforced?

Q47 If parental agreements are to be registered, should it be a requirement of registration that the parties have independent legal advice and separate and joint counselling?

Q48 Could or should these parental agreements be tendered as evidence when parties apply for a guardianship, adoption or parental status order?

Chapter 8: proving and disproving parenthood

Establishing maternity

Q49 Should the law recognise both the genetic mother and the gestational mother as parents? If not, who should be recognised in law as the mother?

Q50 Should there be a process for the establishment and disestablishment of maternity in law?

Parentage tests

Who is conducting the tests?

Q51 Is there a need to regulate the bodies or persons who conduct DNA parentage testing?

Q52 If so, should regulation be by way of accreditation, a voluntary Code of Practice or court supervision?

What should be tested?

Q53 Should the Family Proceedings Act 1980 be amended to provide for other forms of DNA parentage testing?

The Court’s powers to order tests

Q54 Should the courts have the power to order people to provide a sample obtained from a mouth swab for DNA testing for the purposes of establishing parentage?

Q55 Should the Court take into account the rights of the child when deciding whether to recommend or order a test?

Q56 Should these rights be an important or paramount consideration in the exercise of the Court’s discretion?

Q57 What sanctions, if any, should be placed on those who refuse to submit to tests that are recommended or ordered by the Court? Should it be a criminal offence to refuse to be tested if that has been ordered?

Wardship for the purposes of consent

Q58 Should the law enable the Court to give consent to DNA parentage testing on behalf of the child?

Children’s consent to testing

Q59 Should children under the age of 16 be able to give or refuse consent to DNA parentage testing in cases where they are sufficiently mature and capable of making a free and informed decision?

Q60 Would the recommendations of the Australian Law Reform Commission be an appropriate model for determining the capacity of a child to give or withhold consent? If not, what other model would you favour?

Is testing always appropriate?

Q61 Should the courts have the discretion to refuse to recommend (or order) DNA parentage tests where such testing may not be in the child’s best interests? As, for example, in cases where the child already has a stable family unit, or where an existing parental figure seeks to disestablish parenthood?

Q62 Should persons who have contributed financially and emotionally to the child’s care on the understanding that they are a parent, be able to seek removal of parental responsibilities later on the basis of a test proving that they have no genetic connection to the child?

Use of blood samples from newborn babies for parentage testing

Q63 Should the blood samples taken from newborn babies for genetic defect screening be released to third parties for the purposes of DNA analysis to establish parenthood contrary to the wishes of the guardian?

Q64 Does the child have any rights in relation to the use of these blood samples for DNA parentage testing?


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