By Gill Bonnety of RNZ

Families with surrogate babies being born overseas are struggling to collect them because of international border restrictions and pandemic turmoil.

A surrogacy expert says after years of struggling to have children, it is devastating for parents to not be at their babies' births.

But the Family Court has now streamlined the process to allow surrogate babies to be adopted overseas and arrive on New Zealand passports.

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MP Tamati Coffey - who used a surrogate to start a family - has welcomed news that long-term reform of surrogacy laws is also on the cards.

An associate professor in law at Canterbury University, Dr Debbie Wilson, said despite often being the biological parents of their surrogate child, parents usually have to bring them home on an overseas passport and visitor visa, and formally adopt and change their nationality once they are back in New Zealand.

Current popular countries for New Zealanders looking for surrogates include America, Ukraine and Greece, although destinations can change monthly, she said.

For families using surrogates in Ukraine, coronavirus lockdown means the wait to see their children has already lasted six months.

She estimated dozens of newborns - and babies still in the womb - would be affected by delays.

"With the travel restrictions, what we're finding is that they can't travel out over to the country where their newborn child is," she said.

Tamati Coffey (left) with partner Tim Smith and surrogate mother Natasha Dalziel at their baby Tūtānekai's first ultrasound scan. He wants to streamline New Zealand procedures so would-be parents do not have to use surrogates overseas.
Tamati Coffey (left) with partner Tim Smith and surrogate mother Natasha Dalziel at their baby Tūtānekai's first ultrasound scan. He wants to streamline New Zealand procedures so would-be parents do not have to use surrogates overseas.

"And even if they can get there the whole process that they have to go through to bring the child back to New Zealand is just not working because they need to deal with a lot of government departments, and they seem to have understandably other things that are being prioritised.

"The problem is that they're not the legal parents. So they actually can't just pick up the child and get on a plane."

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That had taken its toll on parents, she said.

"It's got to be devastating. You think that you finally achieved your goal of forming a family, the pregnancy is almost at an end and you're getting excited. And then you just can't be there, and being there with a child in the first couple of months is everything. You want to be able to bond with the child, seeing them as soon as possible. And they just can't do that, and they're not sure when everything will be able to be resolved.

"Just not knowing when you might be able to get out there, some countries have been on lockdown since February. I think the Ukraine is one of those countries where people have been trying to get in there for about six months to get to their child and they just can't.

"It puts the surrogate in a difficult position as well because she's now taking responsibility for the child when that wasn't the intention. And if she doesn't, the child kind of gets abandoned which is even worse."

Babies sometimes stay at surrogacy clinics so the surrogate can go home to her own family - and in extreme cases babies have ended up in orphanages, she added.

To speed up the process for New Zealand parents, Family Court judges and a surrogacy lawyer have written up a new protocol.

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"They realised that this was going to be a potential problem for quite a long time and so they've put in place a different system, which tries to cut down on all the paperwork and allow the child to come home. They commented within the first day I think of this thing being enforced they had actually dealt with one application. And they said they knew of at least 15 others I think, and you can expect that there will be more coming.

"What the protocol is doing is getting rid of that requirement that the child needs to come to New Zealand first, so it's enabling the adoption to take place overseas.

"What that means is that the child can get a New Zealand passport and has New Zealand citizenship before it comes to New Zealand, and that just makes the journey back a lot quicker."

Labour MP Tamati Coffey, who has a 1-year-old son Tūtānekai through a New Zealand surrogate mother, applauded the move but said the flaw in the process was still that biological parents had to adopt their surrogate child at all.

"I still personally believe that if a child is biologically yours that you shouldn't have to go through an adoption process because in no normal situation would you have to do that," he said. "But as the law currently stands, that is the situation, so congrats to the Family Court for trying to streamline their processes for trying to make it easier in terms of international surrogacy.

"The angst that you go through as an intending parent, trying to set up all of the necessary factors to make it happen, let alone go overseas, and make that happen at this time of Covid with borders closed and with countries' passport processing systems essentially down, I can imagine that it would be incredibly emotional for those intending parents who have entered into an arrangement which may be many years in the making.

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"I should think that they would be beside themselves probably with emotion and with anxiety about being able to be there for the moment. But also to make the necessary arrangements in an international way to be able to bring that baby back home."

He has a member's bill on surrogacy in the ballot, including reform of birth certificates and a register of potential surrogates, and is looking forward to a review announced by the Law Commission.

"We have more and more families choosing surrogacy as the means by which to create their own little families," he said.

"We went through a fertility clinic, we found a surrogate, we found somebody that could donate the eggs and through that we were able to create a baby ourselves. But through that process we also realised how outdated the laws around surrogacy were.

"Many names and people go into creating a baby for a surrogacy arrangement, in our situation there are actually six. We've got the egg donor, the egg donor's partner, we've got a surrogate, her partner, and also me and my partner - that's potentially six names that need to go on a birth certificate.

"And New Zealand signed up to the UN Declaration on the Rights of the Child, which believes that every child should have the right to know its whakapapa, every little bit of it. Making that process a lot more open, hopefully some of these issues get brought out through the Law Commission process."

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