A leading surrogacy lawyer and doctor have called for a law change to allow compensation to be paid to women who bear a baby for someone else.

Broadcaster Toni Street last night went public on how she and her husband Matt France's third child is being carried by a surrogate – Street's best friend Sophie Braggins.

The couple turned to a surrogate after Street was diagnosed with a rare and incurable auto-immune condition shortly after she gave birth to Mackenzie in mid-2015.

Zandra Wackenier, who has represented surrogate mothers and "intending parents" in dozens of applications to authorities, says she supports a continuation of the ban on commercial surrogacy in New Zealand, but she also believes surrogates should be compensated for their out-of-pocket expenses.

Toni Street and husband Matt France are expecting a baby via a surrogate. Photo / Doug Sherring
Toni Street and husband Matt France are expecting a baby via a surrogate. Photo / Doug Sherring

"The big one is to be put back in the position she [the surrogate] would have been in but for the surrogacy," Wackenier told the Weekend Herald.

"If she needs to take time off work because she ends up having a caesarean section or gets pre-eclampsia and is off work, the loss of earnings should be covered."

The only payments permitted by the Human Assisted Reproductive Technology Act are "reasonable and necessary expenses" for counselling, fertility-related treatment, and the surrogate's legal advice.

Fertility specialist Dr Mary Birdsall said many intending parents interpreted the "necessary expenses" of treatment to include medical care for the surrogate, such as hiring a private obstetrician, but this was a legal grey area.

She supported a change to allow intending parents to compensate a surrogate for loss of income.

This would be in line with the Government's approval last year of loss-of-earnings compensation to be paid to live kidney or liver donors - except that live organ donors would be paid by the state.

Toni Street and her best mate Sophie Braggins. Braggins is acting as Street's surrogate and carrying her third child. Photo / Supplied
Toni Street and her best mate Sophie Braggins. Braggins is acting as Street's surrogate and carrying her third child. Photo / Supplied

Associate Health Minister Julie Anne Genter is awaiting advice from officials on compensation for surrogates.

"There needs to be further work undertaken to work out what is a 'reasonable expense' for women who act as a surrogate," Genter said.


"Surrogacy is important for New Zealand families, particularly those who have struggled with fertility or who have two same sex parents."

On average since 2004 the Ethics Committee on Assisted Reproductive Technology has approved 17 applications a year. The provisional annual tally has been increasing since 2013/14 and reached 30 in 2016/17.

Street revealed her exciting baby news on Friday night.

In an exclusive interview in today's Weekend Herald, she and France have talked through the surrogacy and the health battle that lead to the decision.

The couple, both 34, are already parents to two daughters - Juliette, 5, and Mackenzie, 2-and-a-half.

They always planned to add to their brood but their dream of a big family was almost cut short when Street was diagnosed with a rare and incurable auto-immune condition.


Shortly after Mackenzie's birth Street became severely unwell - so sick she was in the early stages of organ failure.

Specialists revealed she had life-threatening Churg-Strauss syndrome - which causes auto-immune systems to overreact, leading to allergies, tissue damage and death.

Street underwent six months of intensive treatment and was facing a course of chemotherapy - but managed to get her symptoms under control and is now in remission.

She may be fit and well now, but the syndrome can reappear at any time without warning.

Last year she sat down with her doctor to discuss having a third baby.

"I said to him, can I have a third child and he said 'I don't think you should'," Street said.


"My doctor said I'd be risking my life, risking not being around for Juliette and Mackenzie and I decided I can't do that to them - so I wouldn't have a third child."

Street said the decision had a surprising impact on her.

"I tried to reason with myself that it wasn't happening for me, I wasn't having a third baby - but I felt really down," she revealed.

"I didn't expect that, I thought it would just go away, but I felt this constant nagging, kind of like I was grieving the fact that I couldn't have a third baby."

France said the news also hit him hard.

"Ideally, we would have liked to have more kids, but I just wanted Toni well," he said.


"I could see Toni was grieving the fact that she wouldn't be able to have any more babies."

It was then that Braggins made an offer Street and France could not refuse.

She had raised the idea of being their surrogate in the past, but Street had never seriously entertained it, thinking she would be able to bear more children.

Braggins, who has been Street's best friend since intermediate, persisted with her offer.

"I had mixed emotions," Street said.

"It's a massive thing for someone to do for you - this is my best friend having to go through another pregnancy, me having to watch her be sick, deliver a child and recover.


"All of that just so I could have another child, it was a big decision.

"I initially dismissed it, but Sophie came back and said 'I am serious, I really want to do this' and she bombarded me with text messages to reiterate that this wasn't a pie in the sky offer.

"So, we sat down to have a serious discussion about a year ago."

Braggins, the chief executive of a New Plymouth law firm and the chair of the Taranaki Chamber of Commerce, is now 14 weeks pregnant with Street and France's son and is due in August.

Toni Street, with husband Matthew France, at home in Auckland. Photo / Doug Sherring
Toni Street, with husband Matthew France, at home in Auckland. Photo / Doug Sherring

She is married to Michael Braggins and the couple have two children of her own.

The couple attended university with Street and France and the four lived together when they all moved to Auckland to pursue careers.


Braggins told the Weekend Herald that she was thrilled to be able to help her friends.

"I'm over the moon that this is happening for my most special friends, Toni and Matt," she said.

"It's been a wonderful journey so far"

Street and France also wanted to share their story to raise awareness around surrogacy in New Zealand and clear up any misconceptions about their choice to go down that path.

They explained that the approval phase of the process took about six months.

The couples had to undergo counselling - both together and individually - and meet with specialists and lawyers to ensure each person in the process was up to it.

Then, Street and France had to be vetted.


The way New Zealand law works, even though the baby is biologically their own, Braggins will be the legal guardian when he is born.

Street and France then have to adopt their son.

As with any adoption, they had to be screened by Oranga Tamariki, the Ministry for Children, and police.

Street said the first six months was a "long drawn out" process and it was a relief to get approval from the authorities.

After that though, they had to go through the IVF and implantation process.

After IVF, Street and France had just one viable embryo and were told that the chances of it taking in Braggins' womb were about 40 per cent.


Once implantation happened, another highly risky process that could have ended their baby dream, they had an agonising wait to find out if they were pregnant.

"We only had one shot," said Street.

"We were extremely lucky to even have that one embryo so it was a very nervous wait."

The news was good, and they were thrilled to share it with close family and friends.

"It was kind of like we needed a whole lot of little miracles to happen to get to that point - and we got there," said France.

The couple are relieved that they can finally share their big secret - and their daughters cannot wait to tell everyone who will listen about their new baby brother.


"I never thought I would have a boy," said Street.

"That was the icing on the cake for us, we have the two girls and to have a boy and complete the family was just a miracle really."

Street said Braggins had suffered some morning sickness, but was feeling good now.

She said it was an incredible bonding experience having her best friend as a surrogate - but she also had to find a balance between being interested and supportive of the pregnancy and hovering like a nervous parent-to-be.

It is illegal for Street and France to pay Braggins any remuneration for being a surrogate.

But they can pay any and all medical costs.


"We would love to pay Sophie and her family back for this, not in money but by doing something amazing for them.

"But in reality, what do you give someone who is making this kind of sacrifice for you, we can't think of anything yet that we can do for them to show how grateful we are," said Street.

"I said to her 'you're going through nine months of pregnancy and at the end you don't get a baby out of it, you don't get any joy'

Toni Street is co-host of the The Hits popular morning radio show. Photo / Doug Sherring
Toni Street is co-host of the The Hits popular morning radio show. Photo / Doug Sherring

"She said 'yes I do, the reason I am going through this is to give you your much-wanted third child'.

"I think it brings her a lot of joy to do this for us… she is a very special person to be doing this for us."

They have hired an obstetrician in New Plymouth and another in Auckland - the same one they had for Juliette and Mackenzie.


Braggins had her first scan in New Plymouth, which Street watched over a Facebook live stream and was able to ask questions and talk to her best mate.

The next scan will be in Auckland and Street and France are excited to attend.

Street will be at the birth, but whether France or Braggins' husband will join are undecided.

Street said she felt "incredibly calm" about the pregnancy and baby.

"I thought I would feel find it really hard not actually being pregnant, but I don't find it that strange," she said.

France said it was "weird" for him knowing he was having a baby but not having a wife with a pregnant belly.


But he was used to the idea and just excited for August to roll around.

The couple have had a positive reaction to their news with most people they have told asking many questions.

"There have been tears from our close friends, and others have just been shell shocked," said Street.

"I think most people who know how sick Toni really was after Mackenzie are extremely accepting of this, and relieved," France added.

"It was pretty dark times for that six months and the next 18 months while she was having treatment weren't easy either."

Their biggest supporters for the newest baby France were their daughters.


"Mackenzie is just overjoyed that she's going to be a big sister," Street laughed.

"She's asking when the baby can sleep in her big girl bed, when the baby can play with her toys and when she can give him the bottle.

"Juliette is a lot more inquisitive, she asked 'what does this mean for our family' - but she loves the fact that it's a boy.

"We took them out last week and told them they could buy one little present each for the baby and we ended up with a basket filled with everything blue they could find."

Street and France said the journey to announcing the pregnancy was long, drawn out and intense - for them and the Braggins'.

But the two couples, and their families who they are extremely close to, are now enjoying the pregnancy together and can't wait to meet baby France.


"I feel like we have gotten to the point now that we can get excited," Street said.

"It's been quite an anxious time because it was such an unknown process - being vetted, working with lawyers, counselling - but now I feel like we can be excited about this.

"I'm having a child that I'm not carrying, so I'm not going into this thinking it will be the same as my other pregnancies.

"Obviously I would have loved to carry my own child, go through a pregnancy again and deliver it myself - but when I think about what I am getting at the end of it all…. As long as Sophie is ok and the baby is ok - I'm happy. "

- Additional reporting by Martin Johnston