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New Zealand's stringent assisted fertility laws mean many Kiwis are travelling abroad, spending endless cash, time and energy in their quest to complete their family. As one would-be new dad sat solo in a managed isolation hotel for two weeks after a two-day trip to the US to deliver his sperm for a surrogate, he penned a letter to Jacinda Ardern, writes Katie Harris.
Most of the country was in lockdown, tucked away from the virus ravaging the world outside Aotearoa, but Emily was fighting for her life, and grieving the loss of her unborn child.
In Nelson Hospital's ICU she lay alone.
The then 47-year-old was cut off from her partner Alex during what could have been her final days due to the risk of infection an outsider could bring in.
"I didn't know if she would ever come back. It was a serious thing... She could have easily died in this process," says Alex.
"My thoughts were really limited to: what did I do? Because it was a big dream of mine to have another child and I let her go through all this hassle here and basically risk her own life."
In a cruel twist of fate, the very thing the couple were hoping for ended up almost costing her everything.
They're just one of countless couples wanting to complete their family but are finding Aotearoa's assisted fertility laws too restrictive.
In 2019 Emily and Alex, who already have two almost grown-up children, decided their family wasn't compete and began exploring fertility treatment in New Zealand.
"The thought that our house may be quiet in a few years' time was somewhat scary... I just don't feel ready to retire from active parenting."
Because Emily didn't have any viable eggs, he says they were told they would need an egg donor - something he describes as "practically impossible" to find in this country.
Under New Zealand law, egg and sperm donation, and surrogacy, must not be commercial, so no payment can be made to the donor other than for reasonable expenses.
This, Alex says, was the first roadblock.
Altruistically donating an egg or being a surrogate is no small ask, it can be invasive, time consuming and costly.
And those are just some of hurdles couples or individuals who are unable to conceive must beat. Even once a willing surrogate and donors are found, intended parents are required to weave their way through complex legal documents and battle critical opinions surrounding their choice.
While they are intent on sharing their struggles, the pair are conscious of existing prejudices about surrogacy and only want to be known by their first names.
"Unfortunately, infertility and assisted reproduction still comes with a stigma in our society and some people are very strictly against what we're doing, mostly for religious reasons. We have experienced that in our immediate environment."
Labour MP Tamati Coffey, whose son was born via a surrogate, has a members' bill in the ballot calling for modern laws for our modern families.
It includes reform of birth certificates, providing a way to enforce surrogacy arrangements, in case an intending parent chooses not to take custody of the child, and creating a register of potential surrogates.
And last year Andrew Little referred the Law Commission to undertake a review of the country's surrogacy laws.
Alex and Emily researched clinics in the US which provided fertility treatment and, in late 2019, they flew separately to Hawaii for the first round of IVF.
On Emily's first trip, the implantation was unsuccessful, but the second time round she became pregnant.
However, after returning to New Zealand, she miscarried and the embryo had to be surgically removed, during which she had serious complications.
"She experienced major uterine bleeding. The doctors couldn't find the source of that so she lost a lot of blood. She needed to have a lot of blood transfusions."
He feared for her life, but Emily survived.
Despite the heartache, the couple were undeterred and once she came back from hospital they began investigating surrogacy options.
"It's quite a big step, it's very different to just going through IVF, finding a surrogate is much harder."
Once again the couple reached out to a clinic in the US which facilitates surrgates, Alex went alone in October to give his sperm because he says he couldn't send it from home.
This meant travelling into a country overrun with Covid-19.
In early December the embryo was transferred and although it's early stages, Alex says the first preganancy test with the surrogate looks promising.
"Based on what we went through over the past two years we're cautiously optimistic at this point. I probably won't fully believe it until I can hold a living and breathing baby in my arms."
Success isn't guaranteed, Alex says there's only a 45 per cent chance of it working, so he's not getting his hopes up.
"We're trying to stay positive, but it's a very demanding process. Before this, we had another surrogate matched up in Texas, everything was almost ready to go and just before we were ready to sign that she had to drop it because she works in healthcare and there was a Covid spike."
His message for others wanting to do the same is not to get their hopes up.
"You have to be really determined to meet your goal. It can eat you up, it can eat all your mentality up in the process - it happened to us.
"We were usually happy go lucky people but in the last year I could literally watch myself and my sanity go down the river. Because it was like every couple of weeks we'd have a major disappointment."
Alex assumed he would have to pay for his managed isolation stay but didn't and says he applied for a medical waiver, which was granted, because the procedure wasn't available in New Zealand at the time because of the travel restrictions.
A call for change
While sitting in isolation after returning to New Zealand, Alex wrote an open letter to Jacinda Ardern, calling for her to allow paid surrogacy and egg donation options for couples like himself and his wife.
In the letter, he explained a "hurtful" remark by a doctor that they should be thankful to already have two teenage children.
"Surely, we are, but how does that negate the fact that we feel too young to retire from active parenting in a few years' time and want to have another baby at this stage in our lives? I haven't even lived half of my life expectancy according to Stats NZ."
A response came but Alex says it was generic, and noted the issue had been forwarded to Minister of Justice Kris Faafoi.
Ardern's and Faafoi's offices have been approached for comment.
Fertility Associates Wellington medical director Andrew Murray says the law combined with our relatively small population means there's a very limited number of people willing to donate eggs voluntarily.
Going overseas for treatment is common says Murray, who told the Herald for some patients there is almost no other option.
"For women who need a surrogate, the way it's set up in New Zealand often there's an emphasis on having a surrogate that is relatively close to you so not necessarily a relative but perhaps a friend."
He says the other thing that makes this more difficult is that they have to get permission from ECART (Ethics Committee on Assisted Reproduction Technology) which is the body that can say yes or no, but it only meets certain times a year and they can only look at so many cases at once.
With each failed implantation attempt, Alex says they lose a few months, and he's conscious of the effect their age may have on a potential child.
"We are running out of time, we don't want to be very old parents... We can't play this game for another five years."
While he says they would have liked to do everything in New Zealand, there's no practical solution for them.
"The ideal situation would be to allow payment, it doesn't need to be excessive payment like they have in the United States, but just some sort of compensation for them to create an incentive to do it."
He told the Herald even if everything rolls smoothly with their new surrogate, they will end up spending over $200,000.
Fertility Associates undertake about 80 per cent of all surrogacy in Aotearoa, and data provided by the company shows demand is increasing, in 2015 they did five surrogacies, and this grew to 17 in 2019.
By early December 2020, Fertility Associates had filed 23 applications to ECART for surrogacy that year.
The gruelling surrogacy and adoption process
Auckland couple Craig and Mark Catley always knew they wanted children, but didn't imagine it could be a reality until a few years ago.
Adoption wasn't on the cards for the pair, who after some research, discovered many of the countries where it was common didn't allow same-sex couples.
Finding a surrogate in New Zealand is complicated, they say, and effectively the way to do it is to create a public Facebook page to try to find one online.
Also playing on their mind is poor legal safeguards for intended parents.
"It's a massive ask, the biggest problem in my view, is there's no protection either on the IP [intended parent] side or the surrogate for you around the child's custody. If they were to have some sort of health issue and the intended parent didn't want them, they'd legally be the problem of the surrogate and vice versa - if the surrogate decided they want the baby."
After choosing a US-based surrogacy clinic and lawyer, the men worked to find an egg donor online.
"You click on their profiles, you see their favourite foods you get their high school test scores, all their family medical history and all that stuff," says Craig.
It wasn't plain sailing, and their first donor IVF round did not produce any viable embryos, but in the second round they received 12.
Unfortunately, when their Oklahoma-based surrogate flew to LA for testing, it revealed she had a thyroid issue and would no longer be suitable for the procedure.
Another month went past, and the pair met a different surrogate from Arizona and flew her in for medical testing, however, she also was unsuitable due to a health issue.
By December 2017 they had found their last surrogate, and after the paperwork was complete they began treatment.
"We got the go-ahead end of February and implanted end of March. We put two embryos in the first time and one resulted in the birth of Flynn in December 2018, " says Craig.
Although the couple are overjoyed, they told the Herald many of their peers aren't so lucky and like Alex they also want New Zealand's laws to change.
Mark says having their first child was amazing but he knows it's still quite an unrealistic option for many gay couples.
"You can't remember what life was like before. It just feels, like everyone else. It's quite weird being in the situation we are in, some respects, because we had to fight to be in the same position as our friends."
On top of the complications of the surrogacy, they also had to adopt their own son.
Prior to leaving for the US, Craig and Mark had to go through multiple Oranga Tamariki visits to approve them as adoptive parents.
For Craig, this was one of the hardest parts.
"It's the interrogation, you get the social worker come and she was lovely and she did her best but she had questions she had to ask, but they're bloody invasive."
There were three reports made about the pair, says Craig, before their case even got to the Immigration Minister.
"Initially there was this innate fear like what if they don't approve us, she's 22 weeks' pregnant we're not going to be able to bring him home."
By law, Oranga Tamariki is required to follow a set of guidelines that facilitate the process of overseas adoption following a surrogacy.
Much of this stems from the fact that in New Zealand the people who have "commissioned" the baby are not the legal parents, whether they're genetically related or not.
Legally, at the time of birth the surrogate, and their partner if they have one who has consented to the surrogacy, are the parents.
International casework and adoption manager Paula Attrill confirmed that to complete the steps they need to undertake a suitability check.
"Really all that we are doing is making sure that there's no reason that they aren't safe and able to provide a loving home for the child."
Those that have children through overseas surrogates are subject to the same rules as people who adopt unrelated children in Aotearoa.
Included in this are, police, health and reference checks as well as an in-person meeting with an Oranga Tamariki worker.
A report is then presented to a judge who makes the final decision.
In her 10 years of working in the international surrogacy space, Attrill says she can't think of an instance where a couple have been turned down.
The toughest time for Mark was the medical issues they went through during the surrogacy selection process, but the legal hoops back home made him angry.
"People don't understand how archaic the laws are, people look at the trouble Oranga Tamariki are having and are horrified, we look at the trouble they're having and think of course, the laws written in a way that would cause perverse outcomes it's like a political football no one will touch. "
In his view, allowing paid surrogacy is fair, and will allow the most people to have access as possible.
While he staunchly supports the changes, Mark notes that if we do make things easier there could be a risk of international visitors flocking to New Zealand for treatment.
"So only allowing people who are residents in New Zealand to do it, would be one way to do it."
Completing their whānau comes with a hefty price tag. Multiple couples spoken to by the Herald say it's well into the hundreds of thousands.
But it was worth it for the pair.
"It doesn't really cross our mind day-to-day, it was a necessary thing to do."
Also hindering the quest for children from same-sex couples is that in Aotearoa they aren't eligible for government-funded IVF treatment, so even if they do find a surrogate and donor, they have to foot the bill.
The couple say the funding wasn't an issue for them, but others may not be able to have children due to the price.
In a statement, the Ministry of Health said fertility assessment and clinical requirements apply equally in many relationship scenarios.
However, IVF surrogacy is only funded for eligible people if there are infertility issues for one or both of the intending parents, which means same-sex couples with no fertility issues are not eligible.
Industry members and affected individuals aren't the only ones calling for change. University of Canterbury associate law professor Dr Debra Wilson says the law needs to be updated to meet society's changed attitudes.
Wilson told the Herald the laws were written at a time where we didn't know much about surrogacy so they were creating a law when they didn't really know what was going on.
"When you read adoption decisions where a judge has got to grant adoption on a surrogacy case, and the judges are often commenting that they're actually dealing with these really out of date laws."
It's highly unusual for a judge to label a law "creaky" or dated says Wilson, but this points to the nature in which these laws are thought of.
Echoing Craig's thoughts, she believes the parentage for those born through surrogacy does need addressing.
Instances of surrogacy gone wrong, for example when a surrogate decides to keep a child, are few and far between, but as the law stands there are no legal protections for the intended parents.
"We've always kind of thought we know who the parents of a child is, particularly in normal reproduction our law says the mother is always certain, as she's the one who gives birth, but in a surrogacy situation you might get the two people that want to raise the child being the genetic parents and the surrogate just 'incubating' the child."
This means that biological parents who use a surrogate are at the mercy of the birth mother as they will have to legally adopt their own child.
"She could well change her mind."
In practice, she says this isn't really an issue, but it can be a real sense of stress for the intended parents.
"They do worry the whole time, what if the surrogate says no, what if she changes her mind."
An MP's personal journey through the world of surrogacy
Tamati Coffey understands the complexity of surrogacy in Aotearoa.
The Labour MP and his partner Tim Smith are two of the lucky few who have found a surrogate on home soil. Their son Tūtānekai Smith-Coffey was born in July 2019.
"I've only realised this [the issues] since I've been on my journey and we've realised the hoops that we've had to jump through to make it possible for us."
During this rigmarole, the couple also had to adopt their baby, despite his partner being the biological father.
"Our arrangements for people that are entering into surrogacy, the law hasn't kept up, and I absolutely believe we need to make modern laws for modern families."
Changing this has turned into one of Coffey's "biggest passions".
He says the process made what should have been a happy time for them drag out through stressful court, counsellor and Oranga Tamariki appointments.
"The way that the law stands, the birth mother, the one we chose to carry our child, who wasn't the egg donor either, she became the mother by all legal purposes."
This is part of the reason why he filed a members' bill, in the hopes to streamline the process and make it easier for couples who need fertility treatment.
He says they're now part of an "exclusive" club, where the membership fee is a child, but the MP believes it shouldn't be this way.
The hold-ups, Coffey says, is down to poorly up kept and dated laws, as well as opposition to more progressive fertility treatments.
"We have people that don't think it should be 'a thing' and don't think gay people should be able to have kids on their own."
As well as this, Coffey shares concerns regarding the current legal protections surrounding surrogates and intended parents, something he hopes to look at if his members' bill is pulled.
"You should be able to put an order in the court and say this person, this person and this person are all partaking in this process and actually once this baby is born legal rights do go to the intended parents."
Unlike the couples however, he doesn't believe New Zealand is quite ready for a commercial surrogacy system.
"I would rather see us as a country, being able to do better for our surrogates. In our situation, while we weren't able to directly pay our surrogate, we paid for lots of other things that made her life easier, like we paid for a chiropractor."
He says tweaking the laws is as far as he'd go, and he's hesitant to broach that issue at this point in time.
To help bridge the gap between hopeful parents and women willing to altruistically carry their children, Coffey would like to create a register to connect willing surrogates and intended parents.
"At the moment you have to trawl all over Facebook."
Updating the government funding for IVF rules aren't a part of the current bill he's put forward, however, he wants to call for a review into fertility as a whole.
"It's inequitable, yeah, because we don't have the same kind of access for same-sex couples."
Similar to Coffey, University of Otago Theology professor Dr Andrew Shepherd doesn't see the solution to the supposed deficit in commercialisation.
"We live in a culture where the primary way we solve problems is by saying well this is a market failure so we'll move to an approach of paying."
Instead of this, he says it shows that there has to be greater work done to encourage people into doing it altruistically.
On a personal level, he's got some misgivings around commercial surrogacy, and cites the way in which it commodifies another aspect of what it means to be human as one of his concerns.
"Why might those women, again, be in an economic situation where they would choose that? So there's a real risk there that people choosing to do that because they're being paid aren't always people who necessarily have enormous life choices."
He says there are a range of ethical questions that need to be asked and the country will want to think long and hard about the nature of human life and parenthood.
"Should one of the basic integral things of being human, should that be turned into a commodification?"
By going to the US, Alex and his partner are doing almost all they can to have another child, but they're already more than $100,000 out of pocket and they're running out of time.
"At one point we will reach an age where it is irresponsible for the child to have really old parents."
A law change would likely be too late for Alex and Emily, but by sharing their story he hopes others won't have to go through the same strife.
A letter to the Prime Minister
An abridged version of the letter would-be new dad Alex penned to the Prime Minister while in isolation.
What was even more hurtful than being put between the devil and the deep blue sea, was the doctor's remark that we should be thankful that we already have two teenage children.
Surely, we are, but how does that negate the fact that we feel too young to retire from active parenting in a few years' time and want to have another baby at this stage in our lives? I haven't even lived half of my life expectancy according to Stats NZ.
In fact, we have never felt more ready for a child than we do now. We feel much more settled today compared to 17 years ago when we had our first child. I like to believe that we successfully mastered the art of maturing our characters, taking over responsibility and building a great family environment since. Some would even see us as lifestyle role models, having moved here from the other side of the planet years ago, having built (and paid off) a house with a spacious garden where we organically grow some of our food, and working in an interesting industry that allows for a very flexible lifestyle combined with an above-average income. Perfect conditions for raising a child.
I think this is the first time in six years since we moved to New Zealand that I truly dislike this country and wish that we were in an environment that values the most basic human desires a bit more.
We came here because it was supposed to be a great place for raising children. Obviously, it's not. At least not for us, because it throws one huge rock after the other in our way for no logically reproducible reason, before we're even pregnant.
Last week I booked a flight to Los Angeles, only to deliver my sperm in person and fly back just two days later. Something that could have seen as simple as a ride to my local clinic here, was totally unnecessarily inflated to an expensive travel which was way out of my comfort zone because of Covid.
On top of that, I'm now sitting my two weeks off in a managed isolation facility where I pay $3100 for an 18 m2 room with a mouldy bathroom and lukewarm meals, while I could be as well at home with my family. I think this well illustrates what determination
really means and how serious we are about our goal of having that child.
The irony with the whole situation is that due to my travels I skipped the entire day of the Oct 25 which was when our son, who we lost in April, should have been born. I departed in Los Angeles in the evening of the 24th and arrived in Auckland, crossing the dateline, on the morning of the 26th. I'm thinking maybe it's better than this day
didn't exist for me. Grief is a beast that doesn't easily let go. Even six months later it still haunts me every day and only the thought of it is gut-wrenching.
At this point, I'm certain that our struggles with this journey won't end any time soon. We are prepared to spend (waste) another $20,000 for attorneys and courts once our child gets born by our surrogate overseas, just to adopt it (from ourselves) in accordance with
New Zealand law, which doesn't recognise the concept of surrogacy at all and therefore assumes that the child isn't ours if it's not born by my wife. Even though we will both be the parents on the US birth certificate. But that's a different chapter that needs to be addressed separately later.
We haven't given up yet and hope that in a year's time we will be able to look back on all the struggles with a smile, holding our boy in our arms. Time will tell.
Our plea to the Government of New Zealand: Would it be too much asked to review the Human Assisted Reproductive Technology Act and re-think the country's general stance on assisted reproduction? I believe we as a nation can do much better than we currently do.
• Allow reasonable compensations for gamete donors and surrogates to avoid that people are forced to take high risks and pay enormous amounts of money overseas.
• Create a regulated market for donor and surrogacy agencies to provide legal and medical safety for all parties involved.
• Recognise the concept of surrogacy in family law and allow parents to be legal parents from birth on without needing an expensive adoption process.
• Allow gender selection for family balancing. If not for the first child, then at least for consecutive children to bypass cultural biases.
Even if such a review gets started right away, it won't be in time to help us (hopefully!). But I wouldn't wish what we experienced for my worst enemy. Nobody should have to endure this.
Our plea to New Zealanders:
If you are between 20 and 30 years old, got healthy genes and want to help others to start their family, please consider becoming a sperm or egg donor. The age limit for sperm donors is higher, around 50. I never regretted my donations at any point.
If you had easy pregnancies and births before and love the feeling of being pregnant, please consider becoming a surrogate. You can make one of the biggest gifts in life and help to create families.
Search for "donor" named groups in New Zealand on Facebook, or check Google for further resources.