Second time lucky: govt considers Law Commission surrogacy report

Diana Clement

New Zealand’s surrogacy laws are outdated and in urgent need of reform. That’s the opinion of the Law Commission in its recently-released review – its second attempt to modernise this complex area of the law.

The current law doesn’t even recognise surrogacy as a process that creates a parent-child relationship, says Nichola Lambie, principal legal and policy adviser and project lead at the Law Commission.

As the law stands at present, surrogate parents who are often also the biological parents are even required to adopt their own children. As the Law Commission sees it, adoption and surrogacy are different methods of family-building and require very different legislation.

It’s the second time the commission has recommended change. The first attempt, in 2005, was shelved despite being accepted in principle by the government at the time, Lambie says.

The proposed new framework is not before time, says surrogacy lawyer Stewart Dalley of D&S Law who is a parent to three surrogate-born children. He says there is a better chance of resulting law this time for several reasons.

First, a private member’s bill from back bencher and parent of a surrogate-born child, Tāmati Coffey, has been drawn from the hat and has received cross-party support. If passed, the bill will update, simplify and clarify surrogacy arrangements and ensure completeness of birth certificate information. It also provides a mechanism for enforcing surrogacy arrangements. The bill is at select committee after passing its first reading in Parliament.

Another good reason legislation is likely to follow from this review is that Prime Minister Jacinda Ardern herself sponsored a private member’s bill about surrogacy in 2013, Dalley says.

“This isn’t just something that Kris Faafoi has run off and done without anyone knowing about it. I think we’re going to see change. Whether it will be a wholesale adoption of all of the recommendations remains to be seen.”

The review coincided with the Ministry of Justice’s review of the Adoption Act, which is 67-years-old and doesn’t reflect modern adoption practices. The Law Commission review on surrogacy doesn’t make any recommendations about the Adoption Act.

The recommendations

Its report has 63 recommendations. The key change is creating an administrative pathway that bypasses the need to register a surrogate birth under the Adoption Act. To qualify, the surrogacy arrangement must be approved in advance by the Ethics Committee on Assisted Reproductive Technology (ECART), and the woman carrying the child agrees. The ECART process is a “robust and effective safeguard” that is widely supported, Lambie says.

The intending parents could then register the child’s birth in the ordinary way. From the time of birth until the surrogate gives her consent, the intended parents would be deemed additional guardians.

Under the Law Commission’s recommendations, the process would also be simplified for traditional surrogacy that has not gone through the ECART approval process where the surrogate’s own egg was used and for international surrogacies. The proposals include a separate Family Court pathway to establish legal parenthood post birth. 

Other key recommendations included:

  • establishing a national surrogacy birth register containing information about surrogate-born children’s genetic and gestational origins, and whakapapa;allowing surrogates to be paid for reasonable costs, including loss of income, to ensure they are not left out-of-pocket;
  • enabling advertising for lawful surrogacy arrangements; and commissioning Māori-led research to provide a better understanding of tikanga Māori and surrogacy.

The Law Commission also recommended that the government undertake a separate first-principals review of the information to include on birth certificates.

They would continue to record a child’s legal parents, which will be the intended parents. The commission noted there were issues with preserving information for surrogate-born children. One option may be both a long-form birth certificate with all relevant whakapapa information including the surrogate’s details to preserve the child’s and subsequent adult’s sense of identity. In addition, a short-form certificate could be used by surrogate-born children for day-to-day needs such as registering for school where privacy may be a concern.

The government will now consider the recommendations and decide whether to accept them, says Lambie. “A draft cabinet paper will be prepared as soon as practicable. If cabinet accepts the report’s recommendations with the effect that a bill will be required, cabinet will add the bill to the legislation programme. Otherwise, the government will respond formally by way of a paper presented to the House within 120 working days of the presentation of the Law Commission’s report. This is known as the government response and will fall due in early November by our calculations.”

No register

Both Coffey and Dalley welcome the Law Commission’s recommendations and have high hopes that legislation will follow.

Their only disappointment is the Law Commission’s opposition to the creation of a surrogacy register, where intending parents and surrogates could be matched.

“One of the things that’s left lying [is] the Law Commission didn’t recommend that there should be a surrogacy agency, or [allow not-for-profit] NGOs to practise in this area,” Dalley says.

That might involve an intended parent being able to go to the agency or NGO to be matched with a surrogate. “They would have a list of surrogates on the books that you could potentially match with.”

Coffey says that omission is a gaping hole in the equation and that he doesn’t buy the argument that the Ministry of Health or third parties shouldn’t provide a register.

Currently, parents find surrogates through word of mouth, social media or even articles or advertisements in women’s magazines, Dalley says.

“It’d be nice to have a structure around this and have a safe place where you could go [to] be matched up with a surrogate.”

Dalley hopes Coffey’s private member’s bill will help fill this void. If the government isn’t willing to create an agency, another option could be fertility clinics, which already have egg and sperm donor registers. “So why not surrogates? Conversation needs to happen with those clinics to see why they don’t do it.”

It would cost the fertility clinic upfront to arrange for the surrogate to have medical testing, counselling, and background checks. “They would have to incur that cost [which] would then fall on to the intended parent to recompense the clinic or the provider.”

That would be an improvement on the current DIY style of matching, Dalley says. “People really don’t want to [search on Facebook groups]. They’re doing it because that’s the only option they have. They would much prefer to do it privately and with some dignity.”

Role of government

Amokura Kawharu, president of the Law Commission, and Lambie presented their findings to the Health Select Committee on June 8.

Lambie said a government register or allowing third parties to operate on a non-profit basis as they do in the UK were considered as options.

“We found neither …. had a huge amount of support,” she says. “Our starting point was …. the proper role of the government here. We think the state’s proper role is to provide a safe and effective regulatory framework but not to actively facilitate private surrogacy arrangements.

“Getting into the detail by matching intended parents with a surrogate might not be the best use of government resources or the best way for the government to provide the environment for services to operate. We also had some questions about how it would operate in practice.”

The South Australia Law Reform Institute considered but rejected a register when informal communities worked in practice, Lambie says.

The review noted that recommendations in the report would reduce the barriers for intended parents wanting to connect with potential surrogates. “In addition to the online communities that are currently operating, enabling intended parents to advertise for a surrogate will provide new avenues for intended parents and surrogates to connect.

“Second, we are concerned that permitting private intermediaries will increase the cost of surrogacy in Aotearoa New Zealand, even if intermediaries are restricted to operating on a non-profit basis. In the United Kingdom, it has been reported that some non-profit organisations charge more than £15,000 for their services. There would also be a regulatory cost associated with permitting intermediaries to operate in Aotearoa New Zealand.

“Third, we accept the point made by some submitters that it would be very difficult to regulate intermediaries that operate online or over social media.”

On Coffey’s private member’s bill, Dalley says it will be interesting to see if the government machinery and private submitters will push for a surrogacy agency. “Because that seems to be what’s left dangling.”

Complexities

International surrogacy is reasonably common. It can be very complex because every country regulates surrogacy and legal parenthood in different ways, the Law Commission said.

Some international surrogacy arrangements may lack protections for the child, the surrogate and intended parents. By incorporating this into the court pathway, the Law Commission says protection would be provided to the parties. Any application to the Family Court could be heard remotely so the child could get New Zealand citizenship and enter the country with the intended parents shortly after birth.

One question that Dalley is pondering is at what point in a pregnancy will the new law kick in once it’s passed.

Would it be only from the date the law came into effect? Or backdated to conception for surrogate children already conceived? That would be of interest to people who are currently at the start of their surrogacy journey.

As with the marriage equality bill, which amended the Marriage Act 1955, other legislation will need amending to play catchup following the passing of a new surrogacy law, Dalley says. For example, once surrogate parents no longer need to adopt their own children and can apply for parentage orders instead, citizenship law will need to be amended.

“When an adoption order is granted, a child automatically becomes a New Zealand citizen if one of the parents was a citizen or resident visa holder,” Dalley says. “[Legislators] need to ensure they align the citizenship laws as well to cover these parentage orders, especially for [surrogate] children born outside of New Zealand.”

In its review, the Law Commission recommended that s 3 of the Citizenship Act 1977 should be amended to ensure a child who is the subject of a parentage order is treated the same way as a child adopted under the Adoption Act 1955 (or its replacement) for citizenship purposes.

It wasn’t clear until the Law Commission released the report whether Coffey would continue with his private member’s bill.

He says he has now made the decision to push on with the bill and call for submissions, which opened the following day. The bill is open for submissions for six weeks from June 10. “They may want to include issues around the wider surrogacy reports, not just my bill.

“Who knows if there’s going to be further legislation [as a result of the Law Commission’s review]? I don’t, and there currently isn’t any legislation at the moment. So until that happens, we’ll go through the normal select committee process and call for submissions, listen to them and produce a report to get back to the House for a second reading.”

Ultimately Coffey’s bill could be rolled into new legislation and adopted into wider work from the government and he notes the cross-party support for surrogacy reform.

“It’s a good grounding, to actually ensure that it’s not politically gamed or that people don’t use it for nefarious reasons, to be able to score political points.

“It’s really important to mention [that] this isn’t just a matter of the gay issue. This is an issue that affects lots of people who want to start their own families. And I’m really pleased that all parties have realised that this issue is bigger than our political allegiances.” ■

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