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

The legal implications of a surrogacy are different depending on whether the surrogate mother is also residing in New Zealand.

International surrogacies can be commercial (paid) or altruistic (unpaid, or payment of expenses only).

In New Zealand commercial surrogacies are illegal. This means that many people in New Zealand seek overseas surrogacies due to the low availability of domestic surrogates. 

Under New Zealand law, in the case of both domestic and overseas surrogacies, the surrogate mother and her partner, if she has one, will be considered the legal parents of the child. This means that the intended or biological parents will have no rights in relation to the child unless they obtain a court order and/or adopt the child.

Surrogacies can become even more complicated if the surrogate mother is living overseas, especially if they are in a country where there is little to no regulation in terms of surrogacy arrangements, or the country has low human rights standards.

Due to the child being born overseas immigration laws will need to be considered. The child will not be a New Zealand citizen until they are adopted by the intended parents in New Zealand, and then only if one of the parents is a New Zealand citizen or has the right to live in New Zealand indefinitely.

Any decision regarding the child’s entry into New Zealand will be made by the Minister of Immigration. Some of the factors that the Minister may consider when approving entry include:

·         the biological connection between the intended parents and the child;

·         the best interests of the child;

·         whether there is a genetic link between the child and the intended parents;

·         the steps taken by the intended parents to preserve the child’s identity; and

·         New Zealand’s international obligations.

This process can take several weeks, so it will be important to plan ahead and make arrangements prior to the child’s birth.

Overseas surrogacies can also be very expensive. The intended parents will be required to pay for any unexpected medical fees that occur overseas, for example if the child is born with a health condition which requires medical attention.

Due to the nature of an overseas surrogacy, many agencies are involved in the process. These include Oranga Tamariki, Immigration New Zealand, the Department of Internal Affairs and the Ministry of Foreign Affairs and Trade.

It is important if you are seeking an international surrogacy that you obtain legal advice in relation to the other country’s child care and surrogacy laws, as well as legal advice on the laws surrounding surrogacy in New Zealand.

The surrogacy process can be a confusing one, especially when international laws are at play. In order to ensure the rights of you and your child will be protected, it is important to seek legal advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Gianna Menzies and Hunter Flanagan-Connors