NZ Surrogacy Law under review

The laws governing the practice of surrogacy are currently under review by Parliament as well as the Law Commission, as dissatisfaction from those wanting to access the method to “build a family” escalates.

Currently before Parliament is a Member’s Bill titled Improving Arrangements for Surrogacy Bill.  Sponsored by Tamati Coffey, the Bill’s first reading was interrupted after the first two speeches on April 13, 2022.

Concurrently, the Law Commission is preparing a report on its Review of Surrogacy.  The Report is due to be published by the end of May 2022 and will detail the Commission’s recommendations. 

What is surrogacy?

Surrogacy is an arrangement where a woman carries a child, who may, or may not be genetically related to her, with the intention of giving the child to the agreed “intending parents” once he or she is born.

The child may be conceived through Artificial Insemination, or In Vitro (literally “in glass”) using donor gametes, or those of the “intending parents,” or any other combination. 

A number of people may be involved who may not have any biological relationship to the resulting child.  For example, a human embryo could be created where neither of the intending parents provide gametes for fertilization, rather a donor egg and donor sperm are used.  That embryo is then implanted within the womb of a surrogate mother, who has no relationship to either the donors or to the intending parents. 

Further, in order for life to be created, a technician generally must intervene.  The technician artificially inseminates the surrogate mother, or, creates nascent human life in the laboratory (IVF), transferring embryos most likely to survive into the surrogate mother’s womb.

The late Doctor Dunn, an esteemed obstetrician, wrote in his book The Doctor and Christian Marriage, (1992),about the complicated familial dilemmas that arise from surrogacy arrangements.  “Cases have been reported in which a woman has ‘donated’ an ovum to her sterile sister, who went on to be the surrogate mother,” he writes.  “The baby she produced was therefore her own nephew, her husband’s stepson, and the donor’s true child as well as her stepson, too.”

What are the current surrogacy laws in New Zealand?

In New Zealand, surrogacy arrangements are legal, and are primarily regulated by the Human Assisted Reproductive Technology Act 2004 (HART).  Section 14 states “a surrogacy arrangement is not of itself illegal, but is not enforceable by or against any person.”

Further legislation relevant to the practice include the Care of Children Act 2004, and the Births, Deaths, Marriages, and Relationships Registration Act 1995.

Before proceeding, an application must be made to the Ethics Committee on Reproductive Health (ECART).  This Committee is responsible for overseeing applications for a number of human reproductive procedures, including research on gametes and embryos.  It has the responsibility of determining whether the proposed procedures may go ahead.

Surrogate arrangements must be altruistic, and the surrogate is unable to receive payment for her services, although covering costs such as treatment, and legal fees, are considered appropriate.

When the child is born, the surrogate mother and her legal partner (if she has one) are considered the legal parents, therefore, the child must be adopted by the “intending parents.”  When the child is conceived and born overseas, the situation becomes one of international adoption.

Surrogacy is considered an option for single men and women, same-sex couples, and heterosexual married couples, so long as the Ethics Committee approves the application.  Approval is not necessary for private surrogacy arrangements that do not require the use of a fertility clinic.

Improving Arrangements for Surrogacy Bill

The Improving Arrangements for Surrogacy Bill, is sponsored by Member of Parliament Tamati Coffey, who has a child born through surrogacy.

According to the Explanatory Note, the purpose of the Bill is to “simplify surrogacy arrangements, ensure completeness of information recorded on birth certificates, and provide a mechanism for the enforcement of surrogacy arrangements.”

Speaking in Parliament at the First Reading, Coffey declared:

“This is not just a gay issue; it’s not just a straight issue, either. This is an issue for many New Zealanders who, for one reason or another, find it very hard, sometimes impossible, to be able to carry children themselves. Ever since I started on this journey, I’ve made sure that I’ve been telling people this journey is all about making modern laws for modern families. We’ve come a long way from the old nuclear family, the way that things used to be, or at least the way that television and the movies like to think families were portrayed, with mum, dad, and the two kids. These days, we have all kinds of families, and often when we have surrogates stepping into that role as well, the family gets extended just a little bit more.”

Tamati Coffey

Family Life International contend that this legislation is designed to further undermine the family, restructuring it both in definition, and in practice.  Such a move will have a detrimental impact not only on family life, but for the whole of New Zealand society.

Newborn baby

Coffey noted several key points of change in his speech.  One such concern was that of ensuring a method for intending parents to apply for a court order prior to the birth of the child in order that legal parenthood be transferred to them immediately at birth. 

Another purpose of the legislation is to provide a way for all people involved in a surrogacy arrangement be listed on the child’s birth certificate.  This stipulation satisfies to some extent the right of all children to know their biological heritage.

Of concern is the attempt to commercialize surrogacy, while suggesting that this is not really the case at all.  Although Mr Coffey maintains that while “commercial surrogacies aren’t exactly what we want here in Aotearoa,” he notes that it is expedient to ensure “the expenses that the surrogate has to incur as a result of her choosing to do this doesn’t leave her out of pocket.”

In addition to providing for the costs of treatment, legal fees, and travel costs, the Bill provides for the reimbursement of lost wages or salary. 

Such a move of compensating for lost wages takes on the feel of a commercial transaction.

In his reply, National leader, Mr Luxon, noted the dilemma of ensuring that reasonable compensation doesn’t turn into commercial surrogacy by default.  He expressed his concern that reimbursing “reasonable expenses” is “a much more difficult thing to legislate in a way that doesn’t in effect lead to commercialisation.”

The establishment of a Surrogacy Register further adds to concerns about exploiting surrogacy for financial gain.  No longer an arrangement between family or friends, the surrogate, if the Bill is passed into law, could be reimbursed for lost wages, which is in effect payment.  The Register would be administered by the Ministry of Health.

Law Commission’s Review of Surrogacy

Charged with the responsibility to review surrogacy laws in New Zealand in 2020, the final report is currently being prepared and is set to be released by the end of May.

In the Foreword to its Issues Paper, President of the Law Commission, Amokura Kawharu states that “a key problem with the current law relates to legal parenthood.”  She notes that “intended parents must adopt the child… to be recognised in law as the child’s parents.”

“We think it is time the law caught up with the reality of surrogacy arrangements,” Kawharu declares.

According to the Terms of Reference, the Review will consider such things as:

  • Surrogacy from an ao Māori perspective and how the law should address any matters of particular concern to Māori;
  • How surrogacy arrangements should be regulated in Aotearoa New Zealand;
  • Whether the types of payments intending parents can make under a surrogacy arrangement should be expanded, and if so, what types of payments should be permitted;
  • How the law should attribute legal parenthood in surrogacy arrangements;
  • How international surrogacy arrangements (where either the intending parent(s) or the surrogate live overseas) should be provided for in Aotearoa New Zealand law;
  • What information should be available to children born from surrogacy arrangements.

It is anticipated that the recommendations in the Law Commission Review will be taken into consideration at the select committee stage of the Improving Arrangements for Surrogacy Bill.  The Review may set in motion alternative legislation which would supersede the Bill currently before Parliament.

The Catholic Church upholds the dignity of human beings and the rights of children

Infertility is a heavy cross to bear, and it appears to many that reproductive technologies, including surrogacy, are solutions to the very worthy, and natural, desire to become a parent, when conception does not happen naturally.

All children are a good, and have inherent dignity.  How they come into the world does not change this important fact.  Donum vitae is very clear about the respect due to every human person from the moment of conception.

“Thus the fruit of human generation, from the first moment of its existence, that is to say from the moment the zygote has formed, demands the unconditional respect that is morally due to the human being in his bodily and spiritual totality. The human being is to be respected and treated as a person from the moment of conception; and therefore from that same moment his rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life.”

Donum vitae, I, 1.

However, it is also true that children have the right to be conceived within the context of marriage between one man and one woman, exclusively through the marital act, which is open to life and unifies the couple.  Again, Donum Vitae expresses why marriage is so essential to the engendering of new life.

“the vitality and stability of society require that children come into the world within a family and that the family be firmly based on marriage.  The tradition of the Church and anthropological reflection recognize in marriage and in its indissoluble unity the only setting worthy of truly responsible procreation.

Donum vitae, 5.2.A.1.

Both the Member’s Bill and the Law Commission Review seek to normalise surrogacy as a legitimate way to engender children, and “build families.”  However, the reality is that surrogacy goes against the true meaning of family, reducing the child to an object who is made with the input of many people, instead of as an act of love within the marital union.

It is vital that all people of good will who desire to protect the interests of all children, marriage, and the family, actively oppose these efforts to legitimize an immoral method of bringing children into the world.

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