Surrogacy is an arrangement in which a woman agrees to carry and deliver a child for another couple or person. This means that most surrogate mothers do not have any biological relationship to the child.

Surrogacy is legal in New Zealand, but a surrogate mother cannot be paid “more than her reasonable expenses”. This means that surrogacies that occur in New Zealand are altruistic. Commercial surrogacy arrangements are illegal in New Zealand.

Some surrogacy arrangements may be made through intro-fertilisation (IVF). Those arrangements must be made through a fertility clinic, and an Ethics Committee on Assisted Reproductive Technology must assess the surrogacy to determine whether it is the best option.

Under New Zealand legislation a surrogate mother and her partner, if she has one, are the legal parents of the child. This means that the intended parents must apply to the Family Court in order to adopt the child and be recognised as the child’s legal parents. The intended parents will also need the consent of the surrogate mother and her partner.

This has been a longstanding issue with New Zealand legislation and has been subject to much comment, including from the Law Commission. Many criticisms focus on the fact that the laws which dictate surrogacy arrangements were not drafted with surrogacy in mind, and therefore the laws were not intended to regulate such situations.

A new bill, the “Improving Arrangements for Surrogacy Bill” was introduced in 2022. The Bill is aimed at reforming different laws that regulate surrogacy situations.

The reforms aim to provide intended parents with legal rights when they take custody of the child, rather than having to go through the court process. The Bill also provides a method for the courts to recognise surrogacy orders and to ensure that all parties understand their legal rights in relation to the child.  

The Bill will also address other issues such as:

  • financial support for surrogate mothers;
  • how New Zealand should recognise international surrogacies; and
  • whether tikanga Māori is provided for in the current legislative framework.

The Improving Arrangements for Surrogacy Bill is a step in the right direction in terms of providing adequate rights to surrogate parents and intended parents. However, the surrogacy process can still be very complicated and confusing for parties involved. If you are concerned about your legal rights, it pays to seek advice from a professional with experience in the area.

 

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Gianna Menzies and Hunter Flanagan-Connors