Experts say there are no protections for either the surrogate or the intended parents in these situations. Photo / Supplied
After a series of fertility heartbreaks, Anna and Mark thought their family dream was about to come true when an acquaintance offered to carry a child for them, but it all came crashing down when the surrogate wanted to keep the baby. Katie Harris reports.
Anna and Mark are living what many hopeful parents would call a nightmare.
The couple, who the Herald has agreed not to name, are stuck in a shared custody agreement with their surrogate after the woman decided she wanted to keep the child.
Shortly before the woman was due to give birth they claim she essentially cut off contact with the pair.
"There's nothing worse than not knowing. If we'd been told from the start that she wanted to keep it, it would be easier than just not knowing, because we had no idea whether she would contact us when the baby was born, or what her plan was," says Anna.
Their fears rang true when the baby did arrive and they weren't told.
Intended parents like Anna and Mark are at the mercy of their surrogates because under New Zealand law there are no legal protections for either party.
This means that parents who use a surrogate are legally required to adopt their own child, even if the egg and sperm are theirs.
And the surrogate can change their mind about the agreement partway through and keep the child.
It also means if the intended parents no longer want the baby, the surrogate could be left with the child.
Anna and Mark had already gone through multiple failed surrogacy attempts and a miscarriage when an acquaintance offered to carry a child for them.
At first Anna says she couldn't accept the offer - the seemingly inevitable pain if it didn't work out again too much to bear - but eventually the couple came round.
"In the past when we'd been through all the surrogacy we'd done it through Fertility Associates, we'd had counselling, we'd done the Ethics Committee. We had been through the whole process properly," says Anna.
However time round, and jaded by their failed attempts, they just decided to do without a clinic's involvement, something Anna says was a sweetener.
"You know we've been through it all before, we kind of know what we're doing, we're not stupid and this is someone who's come to us and really wants to do this for us. I guess we trusted her."
And regardless of whether they undertook the surrogacy through a clinic or did a "home-job", the legal protections are the same.
Fertility Associates Christchurch medical director Dr Sarah Wakeman told the Herald on Sunday in the official procedure both the surrogate and the intending parents are assessed to ensure things will go as smoothly as possible.
All parties are required to see lawyers, a counsellor and there is involvement with Oranga Tamariki.
Before heading to the ethics committee, intended parents must have known their surrogate for more than six months and they have to be able to prove their relationship is strong enough to stand the test of pregnancy.
"In the medical and counselling you basically have to be able to show a number of different things have been discussed because what happens if there is an abnormality in the 12 week or 18 week scan?"
She says there's no doubt that doing a DIY surrogacy puts both sides at greater risk of issues arising.
"People are very vulnerable when you're in the situation where you need a surrogate, and the surrogate might be vulnerable. While it's [going through a clinic] a demanding process for people to go through and it takes time and it costs money, it's there for very good reason."
The other main difference between community surrogacy and those done in a clinic, is that typically home surrogates use their own eggs.
Generally, this is done using a syringe with the intended fathers' sperm in it to inseminate the surrogate.
"So genetically, not only is she carrying that baby, she's biologically the mother, whereas the majority of the clinic cases that go to the Ethics Committee that's not the case."
Although this changes nothing legally, she says the surrogate can hopefully look at things differently because it's not her own genetic material.
"Obviously it would be much better for everyone, particularly the intending parents if they're the biologic parents as well, if the law protected them so the surrogate couldn't at the last minute refuse to give the baby up."
To her knowledge she hasn't heard of a surrogate refusing to give a child to the intending parents in a clinic situation, but there's whispers of it happening outside official channels.
"People who are desperately wanting a baby... They'll meet someone who appears to be quite wonderful who offers to be a surrogate but maybe she's possibly not quite so wonderful."
These are things the ethics committee tries to work out before formal surrogacy applications are approved, however there are no guarantees.
"There are a lot of potential problems. Yes, we do need a law change to try and make it easier for people, but that in itself won't take away all of the risks and the issues."
Anna says they bought their surrogate petrol vouchers, pregnancy clothes, and sat by her side during the midwife appointments.
"Everything was good, we were having her round to our place, we were cooking for her trying to support her as much as we could."
This is really the extent to which they could assist her in a financial sense as commercial surrogacy is illegal in New Zealand, so no payment can be made to the donor other than for reasonable expenses.
Apart from the odd bump in the road, things were running smoothly, and the couple started formalising the paperwork for the adoption which would take place after the baby was born.
"We felt like we were doing everything we could and everything was fine."
However, in the late stages of the woman's pregnancy, things fell apart.
During the period where the surrogate was unresponsive, Anna says she had to start taking anti-anxiety medication and both she and her husband weren't sleeping.
"[I was] So tearful just trying to cope with everyday life, just trying to go to work, trying to carry on. And whenever you told people they just could not believe someone could do that to you.
"We just didn't know what her motivation was or why she was doing it."
With the help of mediation, Anna says they got her to agree to a 50 per cent shared custody split which, although it isn't ideal, is better than she'd expected.
"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."
But Anna is grateful for the time she does spend with the baby and says they are completely in love with the baby.
When it comes to surrogacy, University of Canterbury associate law professor Dr Debra Wilson says there is no specific reference in the legislation on how to determine parentage.
"So that means to understand who the legal parents of a child are, we have to use the generic parentage rules which basically say that the woman who gives birth to a child is the legal mother and if she has a partner he is the legal father."
A lack of specificity means that even if they provide the egg and the sperm, the intended parents are treated as if they are donors, not parents.
While this is the first case of its kind that Wilson has heard about, she says the situation tells us there is an desperate need to address our laws.
In a survey she undertook a few years ago, 75 per cent of respondents said they didn't support surrogates being allowed to back out partway through and take the child.
The legislation is more than 20 years old and Wilson says a law change is urgently needed because it's not fit for purpose.
"Basically you know something isn't working when people go overseas because the laws in your country don't work, and we're seeing a massive increase in people going overseas [for surrogacy]."
People are still hesitant to talk about surrogacies gone wrong despite a greater acceptance of the procedure as whole, says Wilson.
"We don't really talk about the problems that can arise, which we need to.
"Remember the poor child in this. If they end up in a shared custody arrangement, how is that going to work for the child? They're the most important thing in this and they need to be raised in the most calm and loving environment as possible... they didn't asked to be born this way, they just need to be loved."
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, 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.
As it stands, the couple's arrangement is going "fine", but Anna's careful not to focus on the "what could have beens" as it can drive you "mental".
"The pick-ups and drop-off go smoothly, it's just kind of hi, bye, when was the last bottle, when was the last sleep type thing. As they get older I think it will get harder."
Never could Anna have imagined after her years of struggling that someone would do something "so awful", but they believe their child is better off having them in their life than not.
"This is the sort of thing you read about in an American magazine, like you wouldn't even see it in a New Zealand magazine, let alone live it yourself."
Oranga Tamariki say cases of a surrogate retaining care of the child she has carried are very rare in New Zealand but are not uncommon globally.
This is one of the reasons international casework and adoptions manager Paula Attril says they strongly encourage people to get legal advice before they commission a surrogacy arrangement.
"If there are complications involving a surrogacy arrangement, including a surrogate retaining care of the child, it can have significant implications for the children involved."
Beyond reporting to the Family Court where an adoption application had been made, Oranga Tamariki would not take any action in the event a surrogate decided to maintain care of the child, which according to New Zealand law is her child at birth, unless the child involved is deemed to be at risk of harm.
Over the years, Anna says they've become pretty resilient, but finding out their surrogate's plan to keep the child through word of mouth was gut-wrenching.
"You can't fathom how awful and twisted some people can be.
"It's such a high-trust relationship, you just don't think you would get into that with the intention of hurting somebody."
At one point in time she told someone she felt stupid for getting themselves into this situation, but she's not sure if going through the formal steps would have changed anything.
"You don't know what to expect. There is no guarantees. Anyone who's been through fertility troubles knows, when you finally have the answer to all your hopes and dreams, they can still be dashed."
If it can happen to her, she's sure it can happen to others, and only wishes the law would have been able to help them when their hope for a perfect family crumbled.
Dates and identifying details have been left out to protect those involved and the couple's story was told to the Herald on the condition the surrogate wouldn't be contacted as it may jeopardise the situation.
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