Surrogacy in New Zealand

Domestic surrogacy laws

There are few statutory regulations that deal with surrogacy. The primary instrument that deals with the legality of surrogacy is the Human Assisted Reproductive Technology Act 2004. The Act sought to create regulations for situations where there was a human assisted reproduction, which encompasses a limited number of surrogacy cases, however as there is a lack of detailed surrogacy legislation the Act has been used in a way that encompasses all surrogacy cases.

The Human Assisted Reproductive Technology Act 2004 authorises altruistic surrogacy in New Zealand, but prohibits commercial surrogacy agreements and bans a person from receiving valuable consideration for participating in a surrogacy agreement or for arranging for another person to participate in a surrogacy agreement. The ban however is not absolute. Payment for specific reasonable and necessary expenses are permitted as well as permitting payment to an independent legal advisor for the woman who is or may become pregnant due to a surrogacy agreement. Section 13 adds to this section and provides that there may be no commercial supply of human embryos or human gametes. The Act also states that “a surrogacy arrangement is not of itself illegal, but is not enforceable by or against any person”. The phrasing is unique and seems to offer little protection for any of the involved parties. If the birth mother decides not to honour the surrogacy agreement the contracting parties are not able to bring a claim against the other and hold her to the agreement. In contrast if the contracting parties, during the course of the pregnancy or after birth, decide that they do not want to honour the agreement and seek adoption of the child the birth mother would be unable to seek fulfilment of the agreement.

Surrogacy agreements cannot easily be created which does seem to offer some protection for the involved parties. Before a surrogacy agreement is allowed to proceed the approval of an ethics committee must be ascertained. The Guidelines on Surrogacy involving Assisted Reproductive Procedures (12 December 2014) states that the Ethics Committee on Assisted Reproductive Technology must determine that: (i)where there is one intending parent, he or she will be a genetic parent of any resulting child, or (ii) where there are two intending parents, at least one will be a genetic parent of any resulting child; and (iii) there has been discussion, understanding, and declared intentions between the parties about the day-to-day care, guardianship, and adoption of any resulting child, and any ongoing contact; and (iv) each party has received independent medical advice; and (v) each party has received independent legal advice; and (vi) each party has received counselling in accord with the current Fertility Services Standard; It then continues to list a number of things that the ethics committee may consider and mandatory requirements that must be satisfied.

International treaties impacting on surrogacy

New Zealand also has strong obligations under the Universal Declaration of Human Rights. Article 3 creates a basic human right, stating that everyone has the right to life. While New Zealand has a strong human rights record this article has created much debate. The rights of the born child fall within the scope of treaties such as the Universal Declaration of Human Rights and the United Nations Convention on the Rights of the Child. Under these treaties a child has the right to life and a right is imposed upon the State to act in their best interests. The Crimes Act 1961 Section 159 defines a child as being a human being “when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not”.

The rights of an unborn child however are not so clear. If all the intended parents to a surrogacy agreement, during the course of the pregnancy, come to the conclusion whereby none of the parties want the child such a child may be left with few rights. The Supreme Court in Right to Life New Zealand Inc v Abortion Supervisory Committee [2012] NZSC 68 concluded that an unborn child does not have a right to life.

This seems to create some consistency with the abortion laws in New Zealand. Abortion is not permitted outright however a certain requirement must be met under the Contraception, Sterilisation, and Abortion Act 1977. There is no minimum age for abortion however all abortions must be agreed to by two certifying consultants. The Crimes Act 1961 section 187A creates five things that the consultants may take into consideration if the pregnancy is not more than 20 weeks of gestation. Such considerations are serious danger to life, physical or mental health, whether incest has occurred, mental sub-normality or if there is a foetal abnormality. If the pregnancy is more than 20 weeks after gestation the two consultants can consider whether the abortion is necessary to save the life of the mother or whether the abortion will prevent serious physical or mental injury that is permanent.

If the parties to a surrogacy agreement decide that they do not want the unborn child and the conditions above are not met it would appear that the right to life under the Universal Declaration of Human Rights does not apply, however that does not mean that the unborn child has no rights. The Crimes Act 1961 creates certain offences in relation to the unborn child in sections 182-187A. It creates an offence to cause the death of a child that is not a human being (for the purposes of the Act) in a way that the person would have been guilty of murder if the child had become a human being. It then continues to create various offences where an abortion occurred but was not legal. While the right to life under the Universal Declaration of Human Rights is not directly applicable the unborn child such a child does appear to have some right to life under the Crimes Act.

Adoption of the child

Once a child has been born as a result of a surrogacy agreement the child will then need to be formally adopted by the intended parents. The Adoption Act 1955 governs this and deals with matters such as whose consent is required and who are the legal parents. If a child was born overseas and was brought to New Zealand a temporary visa must be granted to the child and the habitual residence must then decided by the court. If the court concludes that the child is a habitual resident of New Zealand the Adoption Act 1955 applies, however if it concludes that it is the resident of another State then the Adoption (Intercountry) Act 1997 will apply to the situation. The Court of Appeal set a test whereby the habitual residence of a child could be decided upon. Broadly, test is to look at the intentions of the parents and where they intended the child to be residence of.

There has been large debate over whether there have been breaches of human rights in surrogacy cases. It is clear that the right against discrimination is a fundamental human right. On the international scale the Universal Declaration of Human Rights creates such protection and at the domestic level the Human Rights Act 1993, in particular section 21. Same-sex couples have, for a significant number of years, been arguing that they should have the right to enter into surrogacy agreements. In 2013 same-sex marriage was legalised in New Zealand due to an amendment to the Marriage Act 1955. The court has the power to make an adoption order “on the application of 2 spouses jointly in respect of a child” under section 3 of the Adoption Act. There has been much debate as to whether same-sex couples fulfil the definition of “spouse” for the purposes of the Adoption Act however since the legalisation of same-sex marriage the courts have now concluded that they do fall within the required definition. This was affirmed by the family court in the case of In the Matter of C (Adoption) [2008] NZFLR 141. The implication of this appears to be that this argument, pertaining to human rights breaches towards same-sex couples in adoption and surrogacy cases, have been nullified as the courts may now make an adoption orders to same-sex couples.