The view that surrogacy is only valid if it is altruistic and non-remunerated is considered out-of-date by many involved in the surrogacy process
Opinion: Surrogate pregnancy arrangements are increasingly accepted as a way for people to start a family when they would otherwise not be able to do so. But the question of whether surrogates should be paid remains controversial.
Current rules prohibit “valuable consideration” – essentially any payment, gift, or inducement – by anyone involved in a surrogacy arrangement. The only people the law says can be paid are the professionals providing medical, legal or counselling services.
However, our research shows these rules aren’t working and they risk leaving surrogates out-of-pocket for legitimate expenses.
What we found
In three separate studies between 2016 and 2022, we interviewed 50 fertility industry specialists, legal scholars, bioethicists, and stakeholders, 20 surrogates, and 20 intended parents.
Despite the restrictions on payments and gifts to surrogates, we found gift giving was common.
Surrogates in our study talked freely about the items and services they received from intended parents. These included everything from gift cards to yoga classes, as well as maternity clothes, and even holidays and maternity leave top-ups. Several surrogates mentioned others they knew who had received payments of about $20,000 from intended parents.
One surrogate confided: “My intended parents didn’t pay me anything, but they covered a few pregnancy-related costs—a Prezzy card to buy some maternity clothes and some supermarket vouchers when I had to finish work early and during my recovery afterwards.”
For many surrogates and intended parents, it was acceptable and practical for the parents to be able to give gifts, reimburse expenses, and provide recompense for the time and labour of pregnancy.
One intended parent noted they could not see why “the person who’s carrying my baby [shouldn’t] get a whole bunch of maternity clothes”.
Many of those providing professional services also viewed rules about gift giving and compensation as outdated. One fertility counsellor commented: “It is perfectly reasonable if somebody is giving up their time and energy to carry a pregnancy for someone else that they be given reasonable compensation.”
Most study participants were clear that surrogates should not be out-of-pocket. A majority (55) supported reimbursement or compensation for pregnancy-related costs, and loss of time and wages.
Some – nine intended parents, two surrogates, and two experts – went further and favoured a commercialisation model of some type. This group included a one-time surrogate who said she would only do it again if paid.
About a third of participants didn’t express a view on the compensation question.
Law change needed
The findings of our research lend support to the Law Commission’s recent call for an overhaul of surrogacy law. Its report Te Kōpū Whāngai: He Arotake | Review of Surrogacy said existing arrangements were failing “to meet the needs and reasonable expectations of New Zealanders in many respects”.
The report recommends amending the Human Assisted Reproductive Technology Act to allow payments to surrogates for their reasonable costs. It suggests these should include reasonable medical, travel and accommodation costs, as well as compensation for the surrogate’s loss of earnings and reasonable out-of-pocket expenses.
Lawyer Margaret Casey QC, a member of the commission’s expert advisory group, also backs changing the law. Interviewed for our research, Casey said: “It is ridiculous that we’re not covering people’s expenses for being pregnant … The surrogate shouldn’t go backwards financially.”
Current restrictions mean there’s a real risk this can happen. Surrogates we spoke to disclosed feeling guilty about asking intended parents for anything other than “the necessities”. For some, this made their relatively precarious financial situations even worse.
Labour MP Tāmati Coffey was similarly critical of the law: “Whether or not you’re the intending parents or a surrogate, everybody should have their mana enhanced by the process. Because of the way that the current laws are, none of it is mana enhancing.”
Coffey has been through the surrogacy process with his partner and has a private member’s bill before parliament to improve surrogacy arrangements.
Based on our research, the view that surrogacy can only be mana enhancing if it is altruistic and non-remunerated appears to be considered out-of-date by many involved in the surrogacy process. As the Law Commission recommends, it’s time to change the rules.
Rhonda Shaw is an associate professor in the School of Social and Cultural Studies at Te Herenga Waka – Victoria University of Wellington.
Hannah Gibson recently completed her PhD in cultural anthropology at Te Herenga Waka – Victoria University of Wellington.
Shalomy Sathiyaraj is a research assistant in the School of Social and Cultural Studies at Te Herenga Waka – Victoria University of Wellington.