Photo: 123RF
Seventy-year-old legislation mixed with modern reproductive science creates a difficult and stressful process for parents having babies by surrogacy.
Reproductive science has come far in the past 50 years, but when it comes to surrogacy, our laws have not kept up.
In New Zealand, surrogacy is legislated under the Adoption Act 1955.
"At the moment surrogacy is governed by the adoption laws which were set up obviously when surrogacy was like something out of a science fiction movie," says Kellie Addison, who has been a surrogate twice.
And when you combine modern science and society with 70-year-old legislation you get a resource-heavy, invasive process involving lawyers, an ethics committee, and Oranga Tamariki, that can leave new parents terrified of losing custody of their own baby.
The Improving Arrangements for Surrogacy Bill might change that - but despite having been put forward by Tāmati Coffey in 2022, the government's promises to fast-track it in 2023, and further submissions in mid-October of this year, the bill is still a bill, and not law.
For gestational surrogacy (a pregnancy where the baby is genetically unrelated to the person carrying the pregnancy), the process is done through a clinic, which requires approval from the Ethics Committee on Assisted Reproductive Technology (ECART).
First it needs confirmation that there is a medical reason that the 'intended parent' (ie the one who wants to have a baby) cannot have one themselves. Then the surrogate will need to be signed of as medically fit.
There will be counselling of the intended parents, and the surrogate, and her partner if she has one, and the surrogate and intended parents together. Then they will all need to take legal advice.
After the baby's birth, the intended parents must adopt the baby from the surrogate, who is the legal mother at birth.
Stewart Dalley, a lawyer who specialises in surrogacy and has three children of his own by surrogacy, says this is an area that people struggle with.
"For a lot of people and a lot of clients that I see, especially when it is their own embryo ... that they're the full genetic parents of this child, it sticks in their throat that they have to adopt what is in effect their own child," he says.
Then-Labour MP Tāmati Coffey put forward the Improving Arrangements for Surrogacy Bill in 2022. Photo: RNZ / Angus Dreaver
Addison agrees.
"Despite the fact that the child carries none of my genetics or DNA and it's not my child at all... I am the legal mother of that child because I am the one giving birth to it," she says.
"Any medical decisions during the pregnancy are mine, once the child is born, the child is still legally mine, so, you know, that part of the system is a problem."
Dalley says there is another area that creates stress, which is the heavy involvement of Oranga Tamariki.
"They'll interview you at your house, probably three to four visits at your house, speaking to you and your partner.
"You have to put forward two people for referees they'll get a report from.
"They'll speak to the surrogate, they might speak to the surrogate's partner, if you've got children they'll speak to those children.
"They will look at your house to see your house is a safe environment. I've had it where they want to check the WOF on my car, because apparently the type of person who lets the WOF expire on your car, then you pose a serious threat of harm to your child.
"You need to do a financial disclosure to Oranga Tamariki detailing your incomings and outcomings. So it's quite an invasive process that you go through."
The proposed law change would make things smoother for people doing gestational surrogacy.
"The surrogate and the intended parents are all effectively guardians of this child, for a set period of time, whether that's seven, 10 days... and then at the end of that period the surrogate can sign in a statutory declaration that says the intended parents are the parents of this child and then the intended parents go off and register the birth like anybody else would, end of," he says.
"So if that happens, then if you've done a gestational surrogacy, you've gone through the clinic, it's going to be a far smoother ride."
But he says for people who have done traditional surrogacy - using the pregnant person's own egg and one of the intended parents' sperm - it does not change much.
"[In that case] we're removing the need to do an adoption and we're replacing it with 'you're applying to the court for a parentage order'.
"The cynical Stewart says it's an adoption by any other name. Because it is."
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