Anne Else looks at the Law Commission’s proposals for new surrogacy law, and the key legal issue: how the intending parents become the legal parents

Agreeing to be a birth mother in a surrogacy arrangement is a precious gift to people wanting a child. But if it’s poorly regulated, it can lead to women being seen as just useful wombs.

No one knows exactly how many surrogacy arrangements have been made or how many children have been born this way to New Zealanders since the Human Assisted Reproductive Technology (HART) Act was passed in 2004, because no comprehensive records are kept. But surrogacy makes up less than 1 percent of fertility clinic treatment cycles here. There’s no guarantee of a live birth.

The Law Commission’s best guess is that around 50 children are born through surrogacy each year, including through international commercial surrogacies. The child usually has a genetic connection to at least one intending parent – though not when two donors are used. And in some cases the birth mother is the genetic mother.

(The Law Commission calls her ‘the surrogate’, but ACART (advisory committee) and ECART (ethics committee) use ‘birth mother’ – the most accurate term for her role.)

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There is one big gap in their proposals: they say very little about what will happen if, for any reason, the intending parents can’t or won’t take the child. This has to be spelt out.

For a few years now, some people who’ve already used surrogacy here or overseas, or who want to use it, have spoken out on what they believe is wrong with current laws and regulations.

One complaint stands out: they don’t see why they should have to go through the whole complicated adoption process to become the legal parents of “their baby”.

The Adoption Act, in force since 1955, is a terrible fit for modern adoption, let alone for surrogacy. It’s been overdue for an overhaul for 50 years, and now it’s finally getting one – the Ministry of Justice discussion document came out on July 2.

But the Commission thinks a completely separate law should govern legal parenthood in surrogacy. Given all the baggage that adoption historically carries, this is no surprise. They’ve come up with two linked pathways.

Pathway 1 is meant to cater for most cases. Clinics will seek ECART approval for all their surrogacy applications (including traditional ones). People who have informal arrangements lined up can go to ECART too.

For approved arrangements, there are two options for how Pathway 1 would work.

In Option A, the birth mother is the child’s legal parent at birth. After the birth she signs a statutory declaration confirming her consent to relinquish all parental rights and responsibilities in favour of the intended parents. “A short stand-down period immediately after birth might be appropriate in order for her to do this.”

Once she signs, the intended parents are recognised as the child’s legal parents, and can then register the child’s birth. No court process is required.

Option A upholds the overarching law in New Zealand, and in the vast majority of other countries: the birth mother is always the child’s legal mother at birth, no matter how she got pregnant or whether she has a genetic connection to the child.

This is in the child’s best interests. It protects both the child and the birth mother, ensuring no child is stateless. It also provides a fast pathway for the intending parents to become the legal parents. The birth mother takes an active role in making this a reality. Her declaration can be kept with the official records and become accessible later on, as lasting proof that she freely agreed to this.

In Option B, the intended parents are the interim legal parents at birth. The surrogate retains a right to withdraw her consent, but to do this, she has to petition the court. If she does not exercise this right, they become fully the legal parents and can register the child’s birth after the prescribed period expires. The commission says this would need to be longer than for Option A, so it would “take longer for [the intending parents] to achieve legal certainty”. If something goes badly wrong, the child has no legal parent.

Option B means children born through surrogacy would become the only children in New Zealand who would not have their birth mother as their legal parent at birth. Compared with Option A, the birth mother does nothing active to confirm her consent. She has no standing to do this, because she isn’t the legal mother. So there isn’t even a document clearly marking her role and consent.

Pathway 2 is designed to deal with all those cases where consent is not upheld, or the surrogacy arrangement doesn’t have ECART’s approval, or the whole process takes place overseas.

In this pathway, the surrogate is the legal parent at birth. The intending parents can apply to the Family Court for a post-birth order determining that they are the legal parents of the child. If they succeed, they are deemed to be the legal parents from the child’s birth.

This would mean the birth mother was never the legal mother at all. The court order does not transfer her legal parenthood; it simply replaces her.

Full, accurate records of her identity and role are crucial. This is what many intending parents want: “Many … we spoke with felt that their child’s birth certificate should reflect the reality of the roles played by those involved in the child’s conception and birth.”

The idea that there’s a huge risk of a birth mother “changing her mind” in properly prepared and managed arrangements isn’t supported by evidence. Major problems seem to arise only if the relationship between the intending parents and the birth mother breaks down. As far as we can tell, this hasn’t yet happened with any ECART approved surrogacies. The commission says it would be “rare”.

Instead the media is full of heart-warming stories showing how close and warm these relationships can be, provided they’re on a firm, fair foundation to start with.

Ensuring that the woman who gives birth is the legal parent at birth, then confirms her consent and is recorded as the original mother, is a keystone of ethical surrogacy. There is no need to deny her this status.

Submissions have to be in by September 23.

Online Consultation Website
Post Law Commission PO Box 2590 Wellington 6140

Anne Else was adopted under the regime of closed stranger adoption. She has researched and published widely on women and social history, including adoption and assisted reproductive technology.

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