Law commission

Law Commission recommends allowing parents using a surrogate to be legal parents without legal process

The report was delivered to Parliament on Friday. Picture/File

A Law Commission report has proposed changing the country’s “outdated” surrogacy laws so that intended parents in approved arrangements can be recognized as the legal parents of a child born by surrogacy without legal process.

The report, which makes several recommendations, was presented by the Commission to Parliament on Friday and acknowledged that there was a “pressing need” to change the law to meet the reasonable needs and expectations of New Zealanders.

Law Commission senior adviser Nichola Lambie said the experience of those who use surrogacy because they are unable to carry a child themselves in the current setting shows that improvements are needed.

“A key issue is that the law does not recognize surrogacy as a process that creates a parent-child relationship between the intended parents and the surrogate child. Instead, the intended parents must rely on the Adoption Act which was crafted over 65 years ago and did not contemplate the modern practice of surrogacy.”

The report referred to a story published in the Herald last year about a couple
who ended up in a joint custody arrangement after her surrogate changed her mind and wanted to keep the child.

“It was awful, just this uncertainty of not knowing what’s going on. You know, it was also my husband’s baby and it was supposed to be our baby and we planned it… It was so awful ,” the mother-to-be told the Herald at the time.

The report noted that this was the only case reported in the media of a
surrogacy agreement in which the surrogate changed her mind during the pregnancy and
wanted to keep the child.

Lambie said surrogacy is a legitimate form of family building that requires a specific legal framework to promote and protect the rights and interests of surrogate children, surrogate mothers and intended parents.

Key recommendations include:

• Introduce a pathway to recognize Intended Parents as the legal parents of a child born via surrogacy without the need for legal proceedings, where the surrogacy agreement has been approved by the Ethics Committee on assisted reproduction techniques (Ecart) and the surrogate mother gives her consent.

• Provide a separate legal route to recognize intended parents as legal parents of a surrogate child in situations where the administrative route does not apply.

• Give effect to children’s rights to identity by establishing a national surrogacy birth registry to safeguard access to information by surrogates about their genetic and gestational origins and whakapapa.

• Clarify the law to allow payments to surrogate mothers for reasonable costs actually incurred in connection with a surrogacy arrangement, including compensation for loss of earnings.

• Modifications to the Ecart approval process to improve its functioning and allow Ecart to approve traditional GPAs.

• Commission Maori-led research to better understand Maori tikanga and surrogacy and Maori perspectives on surrogacy.

• Accept international surrogacy arrangements (where the intended parents live in New Zealand and the surrogate lives overseas) under the legal process of the new legal framework to promote the best interests of the child.

Fertility Associates group medical director Dr Andrew Murray said he fully supports the recommendations.

“We are particularly pleased to see that the recommendations included payments to surrogate mothers for reasonable costs – we hope that over time this will also extend to all gamete donors, including egg and cell donors. sperm.

“Surrogates provide the most incredible gift to the families they help, and shouldn’t be left out in the end.”

He said many of their patients will also be pleased to hear that the recommendations include simplifying the legal aspects of the adoption process once the baby is born.

“It is a very special moment for beneficiary families to finally have their long-awaited baby in their arms, but the baby is not their legal child. The extra paperwork at birth and after can be very burdensome for all parties involved.”

This Surrogacy Review Report is also very timely given that Tamati Coffey’s Surrogacy Provisions Improvement Bill has just passed its first reading with broad all-party support. , did he declare.

“These are two very positive steps to improve the path to surrogacy for both families and their surrogate.”