Media reports about international surrogacy arrangements are increasing.  Due to the small number of babies in New Zealand that are available for adoption, and because commercial surrogacy in New Zealand is illegal, couples are looking overseas for surrogates.

New Zealand law concerning surrogacy has been criticised by our courts and parliament for being out of date but little change has occurred to date.  As a result, when a baby is born overseas through a surrogacy arrangement, bringing the baby back to New Zealand can be a slow and difficult process.

Backtracking a little… surrogacy is defined as “an arrangement under which a woman agrees to become pregnant for the purpose of surrendering custody of a child born as a result of the pregnancy”.  In New Zealand there are no specific surrogacy laws, rather a number of different laws come into play that were not designed for surrogacy situations.  As such, any agreement as to surrogacy in New Zealand, for example, that the surrogate will surrender the care of the baby at birth, is not enforceable.

One of the key issues with our surrogacy laws relates to who is deemed to be the parent(s) of a baby born through surrogacy.  In New Zealand, the surrogate (the female who carries the baby) is deemed to be the mother of the child.  This is the case even if she is not the egg donor and even though she may have no genetic link to the child.  If the surrogate has a partner and that person consented to the surrogacy arrangement then he/she will be deemed to be the other parent. 

The effect of these laws is that in a situation where a couple donate both an egg and sperm in a surrogacy situation, even though they are the genetic parents, under our law they have no parental rights in respect of that baby.  The same applies if a sperm/egg donor are used.

In an international surrogacy situation, even if the parental status laws are different in the country where the surrogacy takes place, once the baby is brought back to New Zealand then New Zealand laws apply.

Bringing a baby born through surrogacy back to New Zealand can be problematic.  It requires dealing with immigration, the Department of Internal Affairs and usually our local adoption agency, Child Youth and Family.  Once the baby is born, DNA tests are ordinarily required to determine a genetic link between the intending parent(s) and the baby in order for a Visa to be granted to bring the baby back to New Zealand.  All of this can take considerable time. 

Once in New Zealand, in order to have parental rights the intending parents need to apply for an adoption order.  This requires the consent of the surrogate and usually her partner if she has one. 

There are many legal matters to be aware of if you are considering a surrogacy arrangement, whether in New Zealand or overseas.  Obtaining advice early on in the process is advisable.