Surrogacy in New Zealand

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, the Act holds that while surrogacy agreements are not illegal, they are not enforceable against any person.  The wording of section 14(1), stating that surrogacy agreements are not illegal, as such, is no doubt framed to avoid the provisions of the Illegal Contracts Act 1970 which gives the court discretion to enforce illegal contracts in a variety of ways, including severing the illegal portion of the contract. Section 14(1) removes any doubt as to the fact that Parliament intended to make all surrogacy agreements unenforceable. Where there is a dispute between the surrogate mother and the commissioning parents over guardianship, parenting orders, or wardship, the New Zealand courts rely on the paramountcy principle in s 4 of the Care of Children Act 2004. Reference to any surrogacy agreement is only to the extent that it records the intentions of the parties, and is a starting point for the court.

There has been a piecemeal approach to the legislation of surrogacy agreements in other jurisdictions. In Australia the approach has ranged from total prohibition and criminalisation of surrogacy procedures in Queensland to no law at all in New South Wales, the Northern Territory and Western Australia. A surrogacy bill currently before the West Australian parliament displays a similar intent to the New Zealand legislation. Where each state is left to make its own law in relation to surrogacy agreements, it can result in inconsistencies and absurd situations. For example, it is illegal for Queensland residents to undergo any surrogacy procedure anywhere in Australia, yet it would be legal for the same procedure to be carried out in neighbouring New South Wales, provided the commissioning parents became residents of that state. The disparities and discrepancies in the Australian legislation have been described by the medical profession as an “utter disgrace”.  Canadian law is a little curious in that the commercialisation of surrogacy is prohibited but agreements to enter into an arrangement are not. The New Zealand position is reflected in the United Kingdom where a surrogacy agreement is not enforceable by any of the parties. The law is consistent throughout the country, an approach that is arguably the preferable to the piecemeal approach of other jurisdictions.

There is no doubt that any artificial birth process needs close monitoring. New Zealand and the United Kingdom, have set up ethics committees to medically assess, and approve or reject all applications for surrogacy arrangements. The ethics committee is concerned with issues such as whether the surrogate and the commissioning couple are resident in the country where the procedure is to take place; the ages of the parties; and the medical and psychological health of the surrogate mother. There is a requirement that all parties undergo extensive counselling and there is a cooling off period enabling any party to withdraw from the arrangement up to three months after counselling. It is implicit that the commissioning parents choose the surrogate mother without any input from medical staff.

Status of the Parties

There are no specific laws in New Zealand dealing with the unique parental relationships that exist in surrogacy arrangements. Because of the artificial nature of the conception, all private self-insemination and NECAHR approved surrogacy arrangements come under the rules that apply to donor gamete conception.

(i)   The surrogate mother

Whether conception is by way of sexual intercourse or insemination, the surrogate mother is the legal mother of any child born in a surrogacy arrangement. She bears all the rights and liabilities of motherhood, unless and until the child is adopted. The position is unchanged even in the case of "full surrogacy" where there is a donated ovum. Under the provisions of the Care of Children Act 2004, if the mother is neither married nor living with the father as a de facto partner between the time of conception and birth, then she will be sole guardian. This parental status might be legally helpful to the surrogate mother were she to change her mind and seek to keep the baby. On the other hand, all financial and legal responsibilities for the child are her responsibility if the commissioning couple were to change their mind and no longer wish to care for the baby.

(ii)  Fatherhood

A common type of surrogacy arrangement is where the surrogate mother is inseminated with the commissioning father's sperm. In such a case, ss18 and 21 of the Status of Children Amendment Act 2004, designed for the straightforward case of Donor Insemination rather than surrogacy, produce consequences that are the exact opposite of the parties' probable intent. Under s 18(2) where a surrogate mother is inseminated with her partner's "consent", then the partner becomes the parent of the child "for all purposes". Correspondingly, under s 21(2), the non-partner donor of the sperm is not a parent of the child "for any purpose". This means that, should the surrogacy agreement fall apart and the commissioning couple refuses to take the child, the partner of the surrogate mother, who had consented to the insemination, would bear legal and financial responsibility for the child as "parent". The male donor partner of the commissioning couple would be entirely free of any financial or other liability. One of the statutory ways in which paternity could be fixed to the commissioning male, is if the commissioning father and the surrogate mother were to sign an instrument, executed as a deed in the presence of a solicitor, in which his fatherhood is acknowledged. That written document would provide prima facie evidence of fatherhood under s 8(2) of the Status of Children Act 1969.

If sexual intercourse between the commissioning father and surrogate mother is the chosen method of conception, the legal result is different. The “artificial” element is not present so the Status of Children Amendment Act 1987 does not apply, and legal parenthood is determined by the declaration made at the time the child's birth is registered. When the mother is unmarried and sexual intercourse takes place, fatherhood is fixed in the normal biological way. Where a surrogate mother is married or in a relationship, then, pursuant to s 5 of the Status of Children Act 1969, the surrogate's husband or partner is presumed to be the legal father of any child born. The presumption can, however, be rebutted, with all questions of fact to be decided on the balance of probabilities. In Re Adoption of C, also reported as Re P both commissioning parents applied to adopt C, although there was no legal reason why Mr P, the biological father, should be required to adopt the child, as the law already recognised the child as his.

(iii) The commissioning mother

The commissioning mother has no legal parental rights even where she is genetically related to the child.

The status of the child

Legal and biological parenthood becomes confused where a child is conceived and born due to a surrogacy arrangement. The aim of the Status of Children Amendment Act 1987, New Zealand’s only statute devoted to assisted human reproduction, is to clarify the legal position of surrogate children. The Act does not anticipate recent technological advances allowing surrogate motherhood, nor does it grant parental status to egg or sperm donors because it was deemed inappropriate to impose rights and liabilities of parenthood on, generally anonymous, donors.  Surprisingly, the act does not recognise the right of the child to have access to the identity or the medical history of the donor, even though it followed closely on the heels of the Adult Adoption Information Act 1985 that recognised the importance of allowing greater access to information for people involved in the adoption process.

Where the surrogate mother hands the child to the commissioning parents, who raise him or her as their own, legal parenthood does not automatically follow the handover. The only option currently available to commissioning parents to obtain legal parental status is to adopt the child. However, the particular requirements of the Adoption Act 1955 and Child, Youth and Family processes can make adoption a problematic option. How then, can a family unit be constructed after a surrogate birth?

(i)  Informal arrangements

While there have only been two New Zealand decisions involving surrogacy, empirical evidence suggests that a number of children have been born as the result of informal surrogacy arrangements. In these cases the surrogate mothers name is left on the birth certificate with the commissioning parties relying, not on a legal parenthood, but rather on the goodwill of all concerned. This can create significant problems as the commissioning parents have no legal parental rights and obligations and the child can be removed from their care at any time. They cannot seek medical care for the child, apply for a passport, or enrol the child in school. The child will be disadvantaged by having no rights of succession. The birth certificate will have the surrogate listed as the child’s mother. The person listed as the father, if there is one, may be the surrogate mothers partner or the genetic father. This creates an incomplete, and often inaccurate, record of the child’s birth and denies them their right to their identity. It is also suggested that on occasion, surrogate mothers register with the hospital in the name of the commissioning mother, and later records the names of the commissioning parents on the birth certificate.

(ii)  Adoption Orders

In most cases that have reached the courts, the parties have sought to have the transfer of the child formalised by an adoption order. While the need for adoption procedures may be questioned, especially where the applicants have a genetic relationship to the child, there are advantages for all parties if an adoption order is granted. The adoption order releases the surrogate mother from any liability for maintenance and extinguishes her parenting rights by granting those rights and duties to the adopting couple. However, the strict requirements of the Adoption Act 1955 do not fit comfortably with surrogacy arrangements and have caused problems for parents wishing to adopt their child.   Commissioning parents can be in breach of the Act if they assume care of the child within ten days of his or her birth, the earliest the birth mother’s consent to the adoption may be given.

Prospective adoptive parents are also subject to vetting for their fitness to parent. Where the parents are genetically related to the child, it is argued that they are disadvantaged as this vetting would not occur were they able to complete a natural pregnancy.  Commissioning parents in a surrogacy arrangement may also be in breach of the Adoption Act 1955 if they make any public requests or advertise for a surrogate mother. It is also common that expenses are paid in surrogacy arrangements. This sits uncomfortably with section 25 of the Adoption Act 1955, which prohibits payments in consideration for adoption.

The current adoption model is inappropriate for surrogacy arrangements where one or both of the commissioning parents are genetic parents of the child: it requires screening of all applicant parents regardless of genetic affinity; it comes into effect only after the child is born; it prohibits the payment of money between birth and adoptive parents; it makes it difficult for the commissioning parents to care for the child in the two weeks after birth, but it is in the interests of all the parties to a surrogacy agreement that the child should be cared for by the commissioning parents as soon as possible. In surrogacy arrangements, the commissioning parents and surrogate mother intend, prior to conception, that the commissioning parents will raise the child from birth. It is argued that the planned nature of surrogacy prior to conception distinguishes it from adoption and enables the law to set in place a degree of pre-conception and pre-birth certainty.

In Re Adoption of C the Family Court was asked to grant an adoption order in respect of a child born following a surrogacy agreement. The court considered whether the parents had breached s25 and s26 of the Adoption Act 1955, prohibiting payments in consideration of adoption, and advertising for adoption. The court held that payments to the surrogate mother under the terms of the surrogacy agreement were for the purposes of maintenance, not profit, and that the agreement contained no references to adoption. Although the parents’ advertisement was found to have breached s26 of the Act, this did not cause the court to question the commissioning parents’ suitability as adoptive parents. In Re Adoption of G the court was asked to consider the situation where the commissioning parents took the child into their home soon after birth without the prior consent of the Department of Social Welfare. The court sympathised with the parents saying said that the current adoption model is inappropriate for surrogacy arrangements by making it difficult for the commissioning parents to care for the child immediately following the birth.  The court also commented on the requirement for screening of parents regardless of their genetic relationship with the child; the fact that the order comes into effect only after the child is born; and the prohibition on maintenance payments to the surrogate mother.

Commissioning parents must also remember that the granting of an adoption order is not automatic. It is granted at the discretion of the court where the court is satisfied that the applicants are fit and proper persons to have custody of the child, that they have sufficient ability to raise, maintain and educate the child, and where the welfare and best interests of the child will be promoted by the adoption.

(iii)  Custody and Guardianship orders

Commissioning parents may also apply for custody and guardianship orders to confirm their status as the child’s parents. An application can be made under s8 of the Guardianship Act 1968. A custody order is not, however, final. It may be challenged at a later date by the surrogate mother and has the disadvantage of not relieving the surrogate mother of her liability to maintain the child. Brookers cites, as examples, the situation where the commissioning parents separate or divorce and the surrogate mother seeks to have the child returned to her care, or where the commissioning parents look to the surrogate mother for financial assistance.

(iv)   Surrogacy agreements

As discussed above, surrogacy agreements are not enforceable in New Zealand on the grounds of public policy. Any agreement regarding between the commissioning parents and the surrogate mother regarding parenting rights and duties is unlikely to be enforced by the New Zealand courts. Where there is a dispute, and a surrogacy agreement is in existence, the courts will consider the agreement as a starting point, reflecting the prior intentions of the parties and will grant order based upon the best interests of the child.  

(v)  Other jurisdictions

In the American states of Virginia and New Hampshire parties are required to obtain court approval of the surrogacy agreement prior to conception and to comply with various statutory criteria. These criteria aim to assess the suitability of the parties and ensure they have entered into the agreement voluntarily and with a full understanding of its nature and effects. In Virginia, legal parental status is then transferred to the commissioning parents, provided they notify the court of the child’s birth within seven days. Once written notice is filed, and it is proved with medical evidence that at least one commissioning  parent is genetically related to the child, the court must enter an order directing that a new birth certificate is issues naming the commissioning parents as legal parents. In New Hampshire court approval of the surrogacy arrangement has the effect of terminating the parental rights of the surrogate mother on birth, although the surrogacy agreement must contain a clause that allows the surrogate to execute notice in writing of her intention to keep the child until 72 hours after birth.

In Israel the Surrogacy Agreements (Approval of Agreement and Status of Newborn Child) Law 1996 requires parties to apply to a multi-disciplinary body for approval where the child is to be conceived using the gametes of both commissioning parents under a commercial or non-commercial surrogacy agreement. The Approvals Committee considers applications in accordance with established guidelines that aim to ensure the interests of the parties, society and the intended child are protected.

In the United Kingdom and the Australian Capital Territory, intending parents may apply for a court order vesting them with parental status after the child’s birth. In the Australian Capital Territories these orders are available in respect of gestational surrogacy arrangements only.  The court is required to make a parentage order if it is satisfied that to do so is in the child’s best interests, and that both the surrogate mother and her partner have agreed to the making of the order with a full understanding of what is involved. The order has effect as if it were an order made about the child under the Adoption Act 1993 (ACT). In the United Kingdom court orders are available for both gestational and traditional surrogacy arrangements under similar terms.

The New Zealand Law Commission argues that there is an urgent need to create a legislative framework for the allocation of parenthood in surrogacy arrangements, which includes guidance for the court where disputes arise. The current legal framework results in children being cared for by parents who have no legal standing in relation to the child. The legal framework to allocate parenthood in surrogacy needs to take account of the interests of the child born of the surrogacy arrangement, the surrogate mother, and the commissioning parents.

Conclusion

Much of the debate focuses on the role of legislation in the control of surrogacy arrangements. To totally outlaw surrogacy is likely to drive the practice underground. Where criminal liability is imposed upon participants there is potential for the children to be detrimentally affected.  Where doctors and other professionals are banned from assisting the parties there is potential for inaccurate and dangerous information to be used by the surrogate mother and the commissioning parents.

Despite significant legal and ethical issues arising from surrogacy arrangements it is argued that they should be allowed to continue, at least in their altruistic form. Should the option not be available to infertile couples, there is grave potential for the practice to be driven underground. It is arguably better that surrogacy practices be provided for in controlled circumstances with clear legislative support.

New Birth Technologies: An Issues Paper on AID, IVF and Surrogate Motherhood, Wellington, Law Reform Division, Department of Justice, March 1985;

 – New Birth Technologies: A summary of submissions received on the Issues Paper, Wellington, Law Reform Division, Department of Justice, December 1986;

 – Non-Commercial Surrogacy by means of In Vitro Fertilisation: Report of the Interim National Ethics Committee on Assisted Human Reproduction, 15 December 1995;

 – Submission of the Department of Social Welfare of New Zealand, on the National Bioethics Consultative Committee Report on Surrogacy, November 1989;

 – Surrogacy Report 1, National Bioethics Consultative Committee, Canberra, 1990;

 – Surrogacy Report 2: (Implementation), National Bioethics Consultative Committee, Canberra, 1990 (appendix 1 contains proposed draft legislation);

 – Biotechnology Revisited: Ethical & Legal Issues, Report for the Medical Council of New Zealand by the Bioethics Research Centre, Dunedin, Otago University, November 1991.

P F Tapp, “Family Law” [1991] NZ Recent Law Review 139