Surrogacy in New Zealand

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LAWS 317: Group Research Paper                

Introduction

Advances in biotechnology in the last 20 years have greatly enhanced the opportunities for infertile couples to have their own child. Sperm or egg donation and IVF treatments are now routinely used. Less common is the practice of using a surrogate mother to carry a child for the infertile couple.  Section 5 of the Human Assisted Reproductive Technology Act 2004 (the HART Act) defines a 'surrogacy arrangement' as an arrangement under which a woman agrees to become pregnant for the purpose of surrendering custody of a child as a result of the pregnancy. Where such an arrangement is made with a couple, the couple is commonly described as the "commissioning parents” and the woman as the "surrogate mother".  Traditional or partial surrogacy is where the surrogate mother’s egg is used in conception. She is the child’s genetic and gestational mother.  Gestational or full surrogacy refers to the situation where a fertilised embryo is implanted into the surrogate mothers uterus. She carries and delivers a child that she has no genetic relationship to.

Surrogacy is fraught with legal and ethical issues that have been canvassed widely in both New Zealand and overseas literature. Broadly speaking, the proponents of surrogacy point to the pain of infertility, and argue in favour of the reproductive autonomy of women. In New Zealand there is the additional argument that Maori custom already has practices whereby a child is "given" to another family member for nurturing. Critics of surrogacy argue that the practice is generally indifferent to the needs of children and debasing to women, and where money is involved in the transaction, the children are treated as tradable commodities. This essay looks at selected law and policy issues surrounding surrogate motherhood, in particular: commercial versus altruistic surrogacies; the surrogacy agreement; the legal status of the child; and the legal status of the other parties to the surrogacy agreement.

Commercial versus altruistic surrogacy

Surrogate motherhood can be divided into two groups: commercial surrogacy where the surrogate mother is paid a sum of money to carry a baby for the commissioning parents; and altruistic surrogacy where a surrogate mother produces a baby without payment of money being sought or received.  

Prior to the introduction of the HART Act in New Zealand, it was possible to have both commercial and altruistic surrogacy arrangements. Commercial surrogacy is now illegal under s14(3) of the Act. Some forms of monetary payments have been retained under s14(4), allowing for the recovery of reasonable and necessary expense. The allowable level of ‘reasonable expenses’ is yet to be argued fully in a court of law in New Zealand however the HART Act is clear that any payment is simply reimbursement for reasonable costs incurred during the pregnancy or after birth.  The reasonable expenses clause is not intended to extend, for example, to reimbursement for lost wages or down time if the mother is unwell during pregnancy.  Any person found guilty of committing an offence under s14 liable on summary conviction to imprisonment for a term not exceeding 1 year or a fine not exceeding $100,000, or both.  It is arguable that the HART Act was enacted to protect the traditional New Zealand family values of not mixing business with pleasure, allowing that an altruistic surrogate mother would fit the family values of being an unselfish, decent and generous person.  

Finding a surrogate mother in New Zealand can be a difficult process as s15 of the HART

Act makes it illegal to advertise for a surrogate mother.  The commissioning parents must look directly to family and friends to assist. The inability to advertise severely limits the possibility of securing an altruistic surrogate mother who is not known to the commissioning parents.  It also results in fewer people being privy to the infertile woman’s plight, placing further pressure on the woman’s friends and family to succumb to the commissioning parents need.  Banning the ability to advertise for a surrogate mother is intended to remove ‘negative’ images of vulnerable women being exploited, and the stigma of commercial dealings in babies. While it was envisaged that the implementation of the HART Act would stop the exploitation of women, it is arguable that weaker family members may be pressured into altruism, allowing the exploitation to continue.   

One important consideration is the emotional exploitation that can arise from surrogacy.  This type of exploitation is more likely to occur in an altruistic surrogacy.  America’s first surrogate mother, Elizabeth Kane, said her low self esteem was the reason she decided to become a surrogate, while Maggie Kirkman (a commissioning mother) tells how she was more concerned for her unborn baby than her own surrogate sister when the latter began to haemorrhage.  Where the surrogate mother decides to keep the baby she faces emotional stresses, not only from the commissioning parents but also from her own family. This is likely to result in further exploitation. The New Zealand Law Commission website notes that:

Recent overseas research has revealed that women are offering themselves as surrogate mothers out of mixed motivations or both altruism and financial gain.  They are said to have high levels of satisfaction and altruism in providing infertile couples with the ‘ultimate gift’ of a wanted and long-awaited child. 

An additional consideration, applicable to both the commercial and altruistic surrogacy, is where the surrogate mother suffers psychological harm from being treated as a ‘means to an end’ in the process of producing a baby for the commissioning couple.  It is likely the surrogate mother will have formed a ‘bond’ with the baby throughout the term of the pregnancy. It is argued that the ensuing separation causes emotional trauma to both mother and baby. This is particularly evident where the commissioning parents want no further contact with the surrogate mother.

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Surrogacy agreements / contracts

The surrogacy process itself is not fundamentally a legal problem. Legal problems may arise where disagreements develop between the parties. The usual way to avoid differences over an arrangement is for the parties to set the agreement down in the form of a written contract. Whether this is appropriate in surrogacy arrangements is open to argument.

The New Zealand position has been legislated for by the HART Act.  The Act is aimed at prohibiting the commercialisation of the surrogacy procedure and preventing the exploitation of women, children and childless couples. To that end, ...

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