Law commission

Law Commission recommends new surrogacy law

Surrogacy law outdated and in need of reform, concludes Te Aka Matua o te Ture | Law Commission in its report, Te Kōpū Whāngai: He Arotake | Surrogacy Review, presented to Parliament today.

The report recognizes the urgent need to change the law to meet the reasonable needs and expectations of New Zealanders.

Nichola Lambie, senior adviser at the Law Commission, said:

“Surrogacy has become an established method of family building for people who cannot bear a child themselves. Their experience with the current framework 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 child born by the surrogate mother. Intended parents must instead rely on adoption law that was crafted over 65 years ago and did not contemplate the modern practice of surrogacy.

“The Law Commission recommends a new framework for determining legal parenthood in surrogacy agreements. Surrogacy is a legitimate form of family formation that requires a specific legal framework to promote and protect the rights and interests of children born to surrogate mothers, surrogate mothers and intended parents.

The report confirms the current ban on commercial surrogacy in Aotearoa New Zealand and makes recommendations to improve the law and practice of surrogacy, including amendments to the Assisted Human Reproduction Act 2004 and the Status of Children Act 1969.

Key recommendations include:

  • Introduce a simple administrative route to recognize Intended Parents as legal parents of a surrogate child without the need for court proceedings, where the surrogacy agreement has been approved by the Ethics Committee on Assisted Reproductive Technologies (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 preserve access to information of surrogates about their genetic and gestational origins and their whakapapa.
  • Clarify the law to authorize payments to surrogate mothers for reasonable costs actually incurred in connection with a surrogacy arrangement, including compensation for loss of earnings.
  • Changes to the ECART approval process to improve its operation and allow ECART to approve traditional surrogacy arrangements.
  • Commission Maori-led research to better understand Māori 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 .

In developing its recommendations, the Commission was informed by its consultation with the community of people with surrogacy experience, members of the public, experts and interested organizations. It has reviewed recent developments in surrogacy law and regulation overseas and incorporates international best practice into its recommendations.

The government will now consider the Commission’s recommendations and decide whether to reform the law.

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