Law Commission recommends allowing parents using a surrogate to be legal parents without court process

The report was handed to Parliament on Friday. Photo / File

A Law Commission report has proposed changing to the country's "out-of-date" surrogacy laws so intended parents in approved arrangements can be recognised as the legal parents of a surrogate-born child without a court process.

The report, which made several recommendations, was presented by the Commission to Parliament on Friday and acknowledged there was a "pressing need" to change the law in order to meet the needs and reasonable expectations of New Zealanders.

Law Commission principal adviser Nichola Lambie said the experience of those using surrogacy because they are unable to carry a child themselves in the current framework shows improvements are needed.

"A key problem is that the law does not recognise surrogacy as a process that creates a parent-child relationship between the intended parents and the surrogate-born child. Intended parents must instead rely on adoption law which was developed over 65 years ago and did not contemplate the modern practice of surrogacy."

The report referenced a story published in the Herald last year regarding a couple
who ended up in a shared custody arrangement after their surrogate changed their mind and wanted to keep the child.

"It was horrendous, just that uncertainty of not knowing what's going on. You know, this was my husband's baby as well and it was supposed to be our baby and we'd planned for it ... It was just so so horrible," the intended mother told the Herald at the time.

The report noted this was the only reported case in the media of a private traditional
surrogacy arrangement in which the surrogate changed her mind during pregnancy and
wanted to keep the child.

Lambie said surrogacy was a legitimate form of family building that requires a specific legal framework to promote and protect the rights and interests of surrogate-born children, surrogates and intended parents.

Key recommendations include:

• Introducing a pathway for recognising intended parents as the legal parents of a surrogate-born child without the need for a court process, where the surrogacy arrangement was approved by the Ethics Committee on Assisted Reproductive Technology (Ecart) and the surrogate gives her consent.

• Providing a separate court pathway for recognising intended parents as the legal parents of a surrogate-born child in situations when the administrative pathway does not apply.

• Giving effect to children's rights to identity by establishing a national surrogacy birth register to preserve access to information by surrogate-born people about their genetic and gestational origins and whakapapa.

• Clarifying the law to allow payments to surrogates for reasonable costs actually incurred in relation to a surrogacy arrangement, including compensation for loss of income.

• Changes to the Ecart approval process to improve its operation and to enable Ecart to approve traditional surrogacy arrangements.

• Commissioning Māori-led research to provide a better understanding of tikanga Māori and surrogacy and Māori perspectives on surrogacy.

• Accommodating international surrogacy arrangements (where intended parents live in New Zealand and the surrogate lives overseas) within the court pathway of the new legal framework in order to promote the best interests of the child.

Fertility Associates group medical director Dr Andrew Murray said they fully support the recommendations.

"We are particularly pleased to see that the recommendations included payments to surrogates for reasonable costs – we hope that in time this is also extend to all gamete donors including egg and sperm donors.

"Surrogates give the most amazing gift to the families they help, and should not be left out of pocket at the end of it."

He said many of their patients will also be pleased to hear that the recommendations include simplifying the legal aspects of the adoption process once the baby is born.

"It is a very special time for recipient families to finally have their long awaited baby in their arms, yet the baby is not their legal child. The additional paperwork at the birth and after, can be very distressing for all parties involved."

This Review of Surrogacy report is also very timely given Tamati Coffey's Improving Arrangements for Surrogacy Bill has just passed its first reading with broad cross-party support, he said.

"These are both very positive steps to improve the surrogacy pathway for both families and their surrogate."