Law Commission’s Review of Surrogacy Laws Explained

Te Aka Matua o te Ture / the Law Commission (LC) is an independent body, tasked with reviewing New Zealand’s laws, and making recommendations for reform. On 29 July, the LC released an Issues Paper reviewing surrogacy laws in New Zealand.

Surrogacy arrangements involve a woman (the surrogate) agreeing to gestate and give birth to a child, with the intention that another person(s) (the intended parent(s)) will raise the child from birth.

These arrangements can further be described as gestational or traditional. In gestational surrogacy, the surrogate is not genetically related to the child. The embryo is created using ovum and sperm from the intended parents or donors and then transferred using IVF into the surrogate.

In traditional surrogacy, the surrogate is genetically related to the child. Her ovum is used, and the pregnancy occurs through artificial insemination using sperm from an intended parent or donor. Surrogacy is currently specifically regulated in New Zealand under the Human Assisted Reproductive Technology Act 2004 (HART Act). Also relevant are the Status of Children Act 1969 (SOC Act) and the Adoption Act 1955, which contain non-surrogacy specific provisions on legal parentage and how this is transferred.

The LC Issues Paper reviews these laws and presents options and/or proposals for reform, which, if accepted, are likely to substantially alter the current regulation. Public submissions are invited until 23 September.

The current New Zealand law

Under the HART Act, surrogacy arrangements are not illegal, but are not enforceable. It is an offence to provide valuable consideration for participating, or arranging participation, in, a surrogacy arrangement (although reasonable expenses can be made to medical providers and lawyers).

Advertising in relation to surrogacy is illegal. For domestic gestational surrogacy arrangements, where a fertility clinic is involved, approval must be given by the Ethics Committee on Assisted Reproductive Technology (ECART).

Under the SOC Act, the legal parents of the child born following a surrogacy arrangement are the surrogate and her partner, if he/she has consented to the surrogacy. This is the case even if the intended parent(s) are genetically related to the child. Transfer of legal parentage to the intended parent(s) must occur through adoption, under the Adoption Act 1955.

7 issues under consideration

The Issues Paper begins by discussing the practice of surrogacy in New Zealand, before setting out Guiding Principles for any reform. It then considers seven specific issues with surrogacy, and suggests options or proposals for reform.

1. Māori and surrogacy

The Issues Paper recognises that aspects of surrogacy have particular significance to Māori, and that legal regulation must therefore understand the importance of women and their ability to give birth in te ao Māori. It is further necessary to recognise tikanga in conception, pregnancy and childbirth and the importance of whakapapa. The LC invites feedback on these matters in relation to surrogacy.

2. Approving surrogacy arrangements

Surrogacy arrangements involving fertility clinics (gestational arrangements) require the prior approval of ECART. The Issues Paper discusses the composition and role of ECART, and the approval process which requires joint and separate counselling, legal and medical advice, and in-principle approval for adoption by Oranga Tamariki. It notes that this process can be costly and time-consuming. The LC seeks feedback on whether the ECART process should continue to be required; and if so, whether changes should be made (eg by altering the process, or by allowing traditional arrangements to also utilise the process).

3. Financial support for surrogates

The HART Act states that it is an offence to give or receive valuable consideration (except for reasonable expenses paid to medical or legal professionals) for participating in, or arranging for, a surrogacy arrangement. This provision can create uncertainty and discomfort amongst surrogates and intended parents as the language does not appear to permit compensation for pregnancy-related expenses or loss of income during birth and recovery from birth. The LC does not consider this provision to be appropriate, and seeks feedback on whether one or more of three different types of valuable consideration should be available: costs during pregnancy; entitlement to post-birth payments; payment of a “fee” for acting as surrogate.

4. Legal parenthood

The SOC Act states that the legal parents of a child are the woman who gives birth and, in relation to assisted reproduction, her partner (if they have consented). Intended parents, even if genetically related to the child, need to adopt under the Adoption Act to be recognised as the legal parents.

The Adoption Act is widely recognised as being out-of-date and including requirements that do not fit well in a surrogacy context. Further, the idea of adopting their “own child” is frequently described as inappropriate by intended parents.

The LC identifies three options for reform: a pre-birth judicial model; an administrative model; and a post-birth administrative model. It proposes the adoption of a framework, which involves two “Pathways”: the primary being “Pathway A”, the administrative model, with “Pathway B”, the post-birth administrative model, applying where criteria for “A” cannot be met. The LC seeks feedback on this proposal.

5. Children’s rights

Given that the LC’s Guiding Principles for surrogacy reform prioritise the rights of the child, this issue considers how a child’s rights to identity and access to information might be protected and enhanced. It identifies alterations to birth certificates to indicate a surrogacy arrangement, and a HART Act register to record surrogacy information, as potential options for reform.

6. International surrogacy

The LC recognises that the practice of international surrogacy is increasing, and involves additional issues resulting from different definitions of legal parentage in different jurisdictions, and concerns about the rights of the child and the surrogate. It recommends that transfer of parentage in international surrogacy occurs through Pathway B, a post-birth administrative model, involving the Family Court, to ensure these rights are protected.

7. Access to surrogacy

The HART Act states that advertising for surrogacy is illegal. The LC notes that intended parents and surrogates often find it difficult to connect with each other, and in practice often rely on online surrogacy groups. It recommends permitting advertising, provided the subsequent arrangement does not breach prohibitions on payment.

The LC also notes other barriers to surrogacy, including the availability of lawyers with surrogacy expertise, public funding for surrogacy, and the availability of donor gametes.

Commentary

The HART Act was drafted in 1997, at a time when there were two known examples of surrogacy in New Zealand. It was therefore heavily influenced by the US Baby M case, involving a widely publicised custody dispute between intended parents and the surrogate. While other jurisdictions (notably the UK and Australian states) enacted provisions similar to the HART Act at approximately the same time, these other jurisdictions have since reviewed and updated their laws to reflect increasing understanding of the practice of surrogacy.

The HART Act, on the other hand, remains in its original form. The LC Issues Paper is a substantial achievement in that it identifies and acknowledges issues and oversights in the law, and provides proposals or options to address these.

Given that some of these will potentially result in substantial changes to the current law, public feedback on these proposals will be invaluable. You can access the Issues Paper here.


Debra Wilson is a legal academic specialising in medical law, particularly in the areas of surrogacy and assisted reproduction. She is the author of numerous articles and chapters on surrogacy, notably Jens Scherpe, Claire Fenton-Glynn and Terry Kaan (eds) Eastern and Western Perspectives of Surrogacy (Intersentia 2019) and Annick Masselot and Rhonda Powell Perspectives on Commercial Surrogacy in New Zealand (Centre for Commercial and Corporate Law, Christchurch, 2019). She is also the author of the online and looseleaf chapters on “Surrogacy” and the “Human Assisted Reproductive Technology Act” in Thomson Reuters Family Law – Child Law. Prior to Covid-19 she was regularly invited to speak at international conferences on legal aspects of surrogacy.

Most recently, she was appointed as a member of the Expert Advisory Group for the Law Commission’s Review of Surrogacy Laws project.

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