Surrogacy is an arrangement which enables couples to conceive when they are experiencing hardship conceiving themselves. What many people are not aware of is the legal implications surrounding surrogacy, in particular the rights of the “intending parents” – that is, those who intend on assuming the psychological parental role of raising the child.
What is surrogacy?
Surrogacy occurs where a surrogate mother agrees to carry a child to term on behalf of “intending parents” and in place of the intended mother throughout the term of gestation. The surrogate is the “carrier” of the child. If the surrogate has a partner, under current law, that partner must consent to the surrogate carrying the child. The surrogate and their partner are the “carriers” of the child.
There are two forms of surrogacy:
- Traditional surrogacy: The surrogate’s eggs are used, making her the biological mother of the child.
- Gestational pregnancy: The woman carrying the child to term has no genetic link to the child and the embryo is typically biologically that of the intending parents.
Legal parenthood
Whilst surrogacy itself in New Zealand is not illegal, any surrogacy arrangement is unenforceable. This means that, until a child is adopted by intending parents, the surrogate mother and her partner (if any) remain the legal parents and guardians of the child and they could change their minds at any time about the child going to the intending parents. This is true regardless of whether one or both of the intending parents donated their genetic material for the pregnancy by surrogate.
Once the child is born via the surrogate, the intending parents must legally adopt the child before they are recorded as the parents. The adoption process is done through the Family Court. The mandatory 10 day stand down period before the application for adoption can be made still applies in these circumstances. It is possible, however, with social work consent, to have the child placed with the intending parents from birth. The court needs to be satisfied that the intending parents are “fit and proper” people to adopt the surrogate child and also that the carriers consent to the adoption.
Until the adoption order is granted, the carriers will have all guardianship responsibilities for the surrogate child. The Care of Children Act 2004 (“COCA”) defines guardianship as having all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child. An exercise of guardianship of a child means determining for or with the child, or helping the child to determine, questions about important matters affecting the child. Important matters affecting the child include:
- The child’s name (and any changes to it);
- Changes to the child’s place of residence that may affect the child’s relationship with their parents and guardians;
- Medical treatment for the child (if that medical treatment is not routine in nature);
- Where, and how, the child is to be educated; and
- The child’s culture, language, and religious denomination and practice.
Guardians are required by law to act jointly, by consulting with each other wherever practicable with the aim of securing agreement on important matters.
Once the adoption order is granted, the carriers lose any and all guardianship or parenting rights to the surrogate child. That means that they will not have a say in any of the matters referred to above, they cannot enforce contact with the child and the intending parents do not need to consult with the carriers on matters such as the child’s education, religion or health options. The birth certificate is amended to record the intending parents as the surrogate child’s parents.
Financial support
Surrogates can only be financially supported by intending parents for the physical surrogacy process (such as in-vitro fertilisation or IVF), independent legal advice in relation to the surrogacy, and other reasonable expenses incurred as a result of the surrogacy arrangement. Any financial support given outside of these reasons is not lawful and carries penalties of up to $100,000 fine or one year imprisonment.
The intention behind this law was to prevent commercial surrogacy. However, the effect is a financial limitation on the surrogate mother when opinion varies as to whether a surrogate mother qualifies to take paid parental leave under the Parental Leave and Employment Protection Act 1987. A surrogate would qualify for 10 days unpaid special leave but this does not resolve the issue of loss of income in relation to the pregnancy.
The decision to be conservative with the payment of reasonable expenses can be linked to the unenforceability of surrogacy arrangements. For example, a couple may prefer to be careful with what financial support is provided, despite wanting to support the surrogate, when the surrogate could decide to keep the child. In this case, the couple would be left open to accusations of committing a criminal offence by providing liberal financial support. This also leaves surrogates financially vulnerable.
Te Ao Māori view
Whāngai is a relatively well known Māori arrangement where a child is given to others to raise. The arrangement is considered similar to surrogacy. However, one of the principles that underpins whāngai is whakapapa (genealogy) and for this reason, whāngai arrangements rarely go beyond whānau or hapū. This ensures that a whakapapa connection is maintained between the child and the birth parents. Reasons for whāngai arrangements other than infertility also include strengthening relations within hapū or iwi, or to instil cultural knowledge into a child.
However, once a child is legally adopted in Aotearoa New Zealand, the carriers lose any guardianship rights and cannot enforce contact with the child. The Law Commission’s July 2021 Review of Surrogacy Issues paper notes that this goes against whakapapa in principle. While it is still possible to make a contact agreement for the carriers to remain in contact with the child, the law affords guardians with ultimate deciding rights.
Further, once intending parents adopt a surrogate born child, they are the legal parents recorded on the new issue of that child’s birth certificate, whether or not they are the child’s full genetic parents. This can cause a loss of knowledge of whakapapa if open conversations are not had and causes issues in relation to state law specific to that child’s hapū or iwi.
Conclusion
With the myriad issues that arise in relation to surrogacy arrangements, both for the intending parents and the carriers, it is important to seek advice early on to ensure as smooth a process as possible.
The Family Law team at Holland Beckett Law would be happy to help you with advice in relation to surrogacy arrangements and adoption orders.
Abigail Pearce
Tauranga
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