Why surrogacy laws need reform

Diana Clement

New Zealand’s surrogacy laws are dated and ready for a shake-up.

Surrogacy straddles at least five laws and two sets of regulations, making life difficult for parents such as Stewart Dalley, lawyer at D&S Law, who has three surrogate children. He also advises clients on surrogacy.

In 2020 the government asked Te Aka Matua o te Ture | Law Commission to review New Zealand’s surrogacy law and practice.

The commission published its issues paper 47 Te Kōpū Whāngai: He Arotake | Review of Surrogacy earlier this year and submissions have been extended to October 1.

The commission estimates up to 50 children may be born as a result of a surrogacy arrangement each year, including both New Zealand and international surrogacy.

One of the guiding principles of its paper is to encourage New Zealanders to enter domestic surrogacy instead of going offshore and the commission acknowledges the process needs to be efficient and cost-effective while still protecting the rights of the child.

The commission’s review includes recommendations surrounding Māori tikanga, the child’s right to information, international surrogacy, government funding for related surrogacy agreement costs and compensation for surrogates.

Backbench MP Tamati Coffey is also on the case with a private member’s bill, which would amend the Human Assisted Reproductive Technology Act 2004 (HART), Care of Children Act 2004, Status of Children Act 1969, Child Support Act 1991, Births, Deaths, Marriages, and Relationships Registration Act 1995 (and regulations), Social Security (Exemptions under Section 105) Regulations 1998.

These and other related laws raise legal, ethical, medical, tikanga, whakapapa, and whanaungatanga (kinship) issues. 

The commission is due to report back to minister Kris Faafoi in the middle of next year at the same time as the Ministry of Justice reports on its review of adoption laws.

Some of the main issues discussed in the surrogacy review include:

  • legal parenthood;
  • approving surrogacy arrangements;
  • financial support for surrogates;
  • children’s rights to identity and access to information; and
  • international surrogacy.

Legal parenthood

The commission notes that as they stand, the legal parenthood laws fail to reflect the reality of surrogacy arrangements. Under common law, the woman who gives birth and her partner (if she has one) are the legal parents at birth. The intending parents must formally adopt through the Family Court under the Adoption Act 1955.

This rule applies regardless of whether the surrogacy is traditional (using the surrogate’s egg,) or gestational, using the ovum of the intended mother or a donor. But the processes differ. In a gestational surrogacy, intending parents must seek approval from Ethics Committee on Assisted Reproductive Technology (ECART), which also involves being assessed by Oranga Tamariki social workers.

It’s this issue of legal parenthood that drove Coffey to draft his private member’s bill, long before the commission became involved. Coffey and partner Tim Smith have a surrogate-born child. The couple had to adopt the child who was biologically Smith’s.

 “Tim had no rights in the whole process,” says Coffey. “That was wrong. It was incredibly invasive especially since the baby was biologically Tim’s. The actual premise of the whole conversation is wrong.”

The hoops they had to jump through were far greater than a straight couple would to adopt a baby, Coffey says.

The commission is recommending new pathways for legal parenthood. The first could see the intended parents become legal parents at birth, providing the surrogacy arrangement was approved by ECART and, after the child is born, the surrogate confirms her consent to relinquish legal parenthood within 42 days.

If the first pathway doesn’t apply, such as with international surrogacies or where the surrogate doesn’t give approval, an application could be made to the Family Court for a post-birth order determining the intended parents are the legal parents of the surrogate-born child. Either way, the intended parents wouldn’t need to go through adoption.

Dalley questions the need to have a 42-day period post-partum right to withdraw consent before the birth can be registered. It’s only 10 days with adoption.

Approving arrangements

New Zealand has processes in place to approve domestic surrogacy arrangements under the HART, but they cover only gestational surrogacy, not traditional arrangements where the mother’s egg is used.

Some commentators have called for ECART to be scrapped, but the commission concluded that prior independent approval in New Zealand is a safeguard.

The chapter of the paper on approving surrogacy arrangements focuses largely on improving the ECART process. It also considers issues such as the need for an appeals process when ECART declines approval and whether traditional surrogacy arrangements should come under the same process, providing a faster pathway to legal recognition of parenthood.

The latter would have a knock-on effect in terms of people’s ability to gain legal parentage, says Dalley.

Financial support

Payment for surrogacy (commercial surrogacy) in New Zealand is illegal under s 14(3) of the HART Act. Breaches are punishable by imprisonment for up to one year or a fine of up to $100,000, or both.

While that might have been a reasonable position to take in the 1980s when gestational surrogacy was an emerging practice, it’s no longer a ‘societally recognisable moral wrong’, University of Canterbury associate professor Debra Wilson notes in Rethinking Surrogacy Laws: Te Kohuki Ture Kopu Whangai – Overview of Report in May 2020.

No-one has ever been prosecuted and lawyers, the paper noted, were divided on whether commercial surrogacy should remain a crime. It referenced a survey of family lawyers which revealed 52% of respondents thought criminalisation should be removed, while 48% favoured retention.

The commission is recommending widening payment, and the move is welcome, Dalley says. Where the line is to be drawn is much less clear.

Currently only a narrow range of costs can be reimbursed, such as collecting, storing, transporting or using a human embryo or gamete, counselling, insemination or in vitro fertilisation, ovulation or pregnancy tests or for legal advice. Many other costs such as maternity clothes that most people would find reasonable are not covered.

It’s problematic and there is no agreement among academics about the legal position. “Views range from s 14 being frequently understood to mean that a surrogate can be given reasonable expenses, to payments to the surrogate for her reasonable expenses are not permitted,” the paper said.

If they are left out of pocket, it may create barriers for women considering becoming surrogates and place stress on all parties.

The irony of the situation, says Dalley, is that even ECART and its advisory panel ACART do not agree on the meaning of ‘valuable consideration’ under the current law. For example, they disagree on whether life insurance premiums for the surrogate should be accepted as reasonable costs.

Not knowing what’s covered by the phrase ‘reasonable expenses’ and what’s not raises ethical questions because it doesn’t address the issue of ensuring the surrogate is in the same financial position as she would have been in but for the pregnancy, says Dalley.

The commission has considered whether a surrogacy fee may be suitable, but came to the view that the arguments against outweigh the benefits. Just because that happens overseas didn’t mean New Zealand should base regulation on the ‘lowest common denominator’.

The issue of payments to surrogates is tricky, especially if New Zealand wants to encourage surrogacy. ‘Commercial’ surrogacy usually invites negative reactions. Yet it may be preferable to intending parents paying for surrogates’ services overseas where they may not be well protected by the law.

The law could, for example, allow ex gratia payments to the surrogate, says Dalley. Even though not mandated, does it then become ingrained that an ex gratia payment at a certain level, say $30,000, is the norm and parents who can’t afford this are locked out? he asks.

“If you allow commercial surrogacy, does it mean the highest bidder is going to win the surrogate? That pushes those who can’t afford it out of the market.”

Another legal issue is whether agreements to pay costs should be enforceable.

The commission wants to clarify the law about surrogates’ entitlements to post-birth recovery leave and payments under the Parental Leave and Employment Protection Act 1987 as part of its options for reforming financial support for surrogates.

The Act does not expressly provide for surrogacy arrangements. Does the surrogate get parental leave or the intending parents or both?

The commission notes that the law is unclear. “One possible interpretation is that both the surrogate and an intended parent can qualify, as the definition of primary carer also includes the person who is pregnant or has given birth. However, Te Tare Taake | Inland Revenue guidance suggests that paid parental leave is available only ‘if you take time off work to care for your baby or a child who has come into your care’.”

Dalley is not convinced that the rules should be arbitrary. While one surrogate might be able to return to work shortly after the birth, another might have had a caesarean section, where it takes longer to recover, or may suffer from post-natal depression.

Access to information

One important thread discussed in the paper is a child’s right to identity and access information about his or her origins. It’s an issue also faced by adopted children. “When information about a person’s origins is not available to them, they may struggle to establish their own sense of identity and experience a ‘deep psychological need’ to know who brought them into the world,” the commission says.

Children shouldn’t have to get an over-the-counter DNA test to find out their own whakapapa. They may have siblings or want to contact wider whānau.

No centralised information is held about surrogate children, although they can access some information under the Adult Adoption Information Act 1985. A donor-conceived child can usually access information held on the HART register or by a fertility service provider once they turn 18. The Family Court can authorise disclosure when they are aged 16 or 17.

The commission’s options include changes to birth registration and certificates that could indicate a child was born as a result of a surrogacy arrangement, recording the surrogate’s name and the details of any donor. These could be annotated to protect the privacy of surrogate-born children. Or, a two-certificate system could be introduced. Both ensure the child is automatically given information about the circumstances of his or her conception.

International surrogacy

New Zealand’s law doesn’t cover international surrogacy, which poses complex issues. Other countries’ laws may be regulated very differently and lack protections for the child, the surrogate and the intended parents, the commission says.

Parents who use overseas surrogates must then adopt their child in New Zealand to get legal parenthood here.

Dalley says in his practice he is often contacted by overseas-based New Zealand parents who have children through surrogacy. They may have been through the process of legal parenthood in the jurisdiction in which they live, such as the United Kingdom or United States. They need to go through the entire court process again here if they want their children to be New Zealand citizens.

One of the big issues for surrogate parents will be the timing of the process, says Dalley. The commission will report to the minister just months before the next general election. There may not be time for any subsequent legislation to pass.

It’s one of the reasons Coffey is continuing with his private member’s bill. A new rule in Parliament means if he can get 75% support from non-ministerial MPs, his bill can bypass the ballot. At the time of writing, he was three MPs short of that total but was yet to talk to the National Party leadership.

Coffey says the commission has been through a more thorough process than is covered by his bill. If the bill were to be tabled in Parliament in the next few weeks, it could become law before the next election.

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