Many couples explore the option of surrogacy as a means to becoming parents. This is partly due to the small number of babies that are available in New Zealand for adoption. Because commercial surrogacy is illegal in New Zealand, couples often look at overseas options.
Media reports regarding the difficulties with international surrogacy arrangements are increasing, and some countries are restricting the ability for foreign couples to enter into such arrangements. Anyone considering entering into a surrogacy arrangement should be fully informed beforehand.
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”. There are no specific laws in New Zealand designed for surrogacy situations. As a result, several different pieces of legislation come into play creating a legal process that can be problematic.
For example, our current law provides that the surrogate mother (and her partner if he/she is consenting to the surrogacy arrangement) will be the parents of the child. This is despite the fact that the surrogate mother may have no biological link to the child (for example, if the intending parents are both the egg and sperm donor). In New Zealand, intending parents need to apply to the Family Court to adopt the baby in order to become its “legal parents”.
In some countries the law is different and the intending parents may be recognised as the legal parents. Despite this, if a baby born through surrogacy is brought back to New Zealand, New Zealand laws apply and the surrogate is still considered to be the parent (until an Adoption Order is made).
Same sex married couples are able to adopt in New Zealand so there are no restrictions arising from sexuality, as opposed to some other countries.
Bringing a baby born through surrogacy back to New Zealand requires liaising with several different organisations including Child Youth and Family, the Department of Internal Affairs and Immigration. DNA tests are usually required. If you are considering a surrogacy arrangement, there are many legal matters and practical considerations to take into account.
Early legal advice is important and we are happy to talk you through the process. If you would like further information or advice, please contact our Wellington based family lawyers Debbie Dunbar, email debbie.dunbar@morrisonkent.com, phone (04) 495 9940 or Maretta Twentyman, email maretta.twentyman@morrisonkent.com, phone (04) 495 8918.