A new bill in Parliament recognises that the path to being a parent is not always straightforward, especially if you’re becoming one via a surrogacy arrangement.
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Photo: 123RF
A child born in surrogacy generally happens one of two ways:
Through a traditional surrogate, where the woman carrying the baby has been artificially inseminated with the sperm of a father who is one of the intending parents, or donor sperm.
Or it happens via a gestational surrogate where IVF makes it possible to gather eggs from the mother (or an egg donor), fertilise them with sperm from the father (or a sperm donor), and place the embryo into the uterus of a woman who is the gestational surrogate.
If that sounds a bit complicated, it actually gets more complicated, and this is the reason why a Member’s Bill from Labour MP Tamati Coffey - the Improving Surrogacy Arrangements Bill - is currently before Parliament.
“In the world of surrogacy, it’s still evolving, it’s still really new, and unfortunately our laws aren’t really fit for purpose. There’s a lot of people that have been caught in little cracks and holes which don’t account for the modern way that people are having families these days.
“It’s not just gay couples, it’s also straight couples that have been caught up in this,” he explained.
“So my Member’s Bill is an attempt to kind of streamline surrogacy processes. If people choose to get into a surrogacy arrangement, make sure that it’s a mana enhancing process. I would say at the moment the law makes it not a mana enhancing process.”
Tamati Coffey Photo: RNZ / Angus Dreaver
Coffey and his partner Tim Smith welcomed their son Tūtānekai into the world nearly three years ago, after he’d been carried by a surrogate, but when their baby was born the couple couldn’t legally take him home as their own child for a while, due to the adoption process.
“It’s an emotional time, going through an arrangement like this, and often so much uncertainty too. One thing a lot of couples who have gone through the surrogacy process point to is the legal ten days that are required to be basically like a stand-down period after baby is born, and then after that they can then start to enact a court process to begin the proceedings to legally adopt a child.
“Where that falls short is when the child actually is the biological child of one of the people in the surrogacy arrangement that’s going through the adoption process,” Coffey said.
Trans-Tasman surrogacy
When you’re part of a surrogacy arrangement, from the outset, there are a lot of hoops to jump through: psychologist appointments, counsellors, lawyers, forms to fill in, phone calls, medical testing – and that’s just to get to ethics approval.
If you’re doing things trans-nationally, it’s often even more time consuming.
Linda Hallas, a surrogate parent in NZ carrying for an Australia-based couple, said there were a lot of people pursuing surrogacy arrangements between the two countries
“Personally I would really like to see some of the policies and legalities between the two countries marry up.”
A macro photo showing in vitro fertilisation. Photo: 123rf
As in Australia, commercial surrogacy is illegal in New Zealand. So surrogacy must be an altruistic arrangement. This can leave a surrogate shouldering a lot of costs, according to Hallas.
“I’m personally not okay with opening it up for commercial surrogacy. But I do think it needs to be easier for families. I can see that it’s somewhat easier for lesbians who maybe go traditional surrogate and have sperm, and they’re in a relationship and they’re both recognised as the legal parents.
“Whereas for gay men it’s very discriminating, they have to go through an adoption. So I would like to see those things fixed and treated equally. A woman’s ability to give birth isn’t necessarily what’s creating families, and I think that’s what we’re trying to get at in New Zealand.”
Hallas argued that fair and reasonable compensation to a surrogate for pregnancy related costs should be achieved.
“Recognition of the Intending Parents as the birth parents from birth would have made this entire process so much easier and baby could have easily been born here without so much accommodation and outcomes having to be planned for. Including the need to re-do our wills to protect my assets for our [own] children which is obviously such a process and more costs that we have to bear."
Whakapapa
To have to go through a formal process to adopt a child that is biologically yours, as Tamati Coffey did, is not necessarily a comfortable process.
“It just doesn’t make sense,” he said.
“We faced the same thing when we went through the surrogacy arrangement as well, which is that we had to wait for the right time, and ten days is a really long time when you’re an intending parent and you’ve ticked things off with your surrogate, and your surrogate just wants to kiss you and wave you on your way.”
According to the MP, his Bill is trying to streamline the process “so that through a surrogacy order, all that stuff can be dealt with and agreed to well before the baby’s even born.
So because it’s already endorsed through the Ethics Committee approval process and also the courts, the transfer of parenthood to the intending parents will become a mere formality from the time baby is born.
That’s one side of surrogacy arrangements. But there are also issues over identity that children who are adopted have experienced.
NZ’s Adoption Act from 1955 was premised on the idea that whoever the child was it was in their best interests to make a clean break from their biological parents, in order to set them up with new families. A lot of information wasn’t passed on.
“As that child grows up, they suffer anxiety and grief about not knowing who made them, not knowing who their parents were,” Coffey said.
“This is despite New Zealand being a signatory to the UN Declaration on the Rights of a Child, and in that the child has a right to its genetic whakapapa, a right to know where they came from, who they came from. This Bill seeks to empower that.”
Square peg
If outdated laws have been creating angst and anxiety for intending parents in surrogacy arrangements, more recent regulations in the child space can make for extra anxiety.
Mark Catley, who with his partner Craig has two young children via gestational surrogacy and egg donation in the United States, said the role of Oranga Tamariki, the Ministry for Children can be problematic.
“They’re fitting a square peg into a round hole, and they do a very good job dealing with the hand they’re dealt, in terms of the legislation, but it’s not fit for purpose," Catley said.
“We had a pretty good experience with our social worker but we certainly talked to other gay couples who have also gone down the US route or done local surrogacy subsequent to us doing it that had very bad experiences,” he said.
“It very much comes down to the social worker you get, and I don’t know that they’re given a whole heap of support in all cases, and whether they investigate what the issues are with a surrogacy-related pregnancy, or whether they just try and apply their standard adoption process which is understandably pretty brutal, because it’s usually due to an uplift, physically removing a child from a parent who doesn’t want that.”
Catley said the Improving Surrogacy Bill was a good start on making it easier for people like he and his partner to start a family, because that all-important initial stage, when the child is born, should not be an upsetting legal processes.
“Not every adoption is the same, and all adoptions are very different from a surrogacy process.
“We got sent a piece of literature that basically said your children will be psychologically damaged from being removed from their mother. It doesn’t apply in our situation. And it’s not the case, because they [their two sons] don’t have a mother and they’ve never spent - other than having a twenty-minute cuddle with their surrogate - they haven’t really spent any time with her, so they would never consider her anything near a parent role because that’s just not the role she has.”
Photo: VNP / Daniela Maoate-Cox
It seems apt as they look at legislation in this area that various members of parliament have gone through their own turbulent journeys to parenthood. For instance, Labour MP Deborah Russell and her husband battled through infertility on their way to having three daughters.
“It made me think about the nature of what it is to be a parent and I think we can separate parents out in many ways. There is a genetic parent, the person from whom the DNA comes, and then there is the gestational parent, the woman who carries a child and the person - usually a man; sometimes someone else - who supports her, who is also a gestational parent as they support, go through a pregnancy. And then there is a social parent, the parent who raises a child.
“Usually all those three roles are contained within the one person: a person is a social, a gestational, and a genetic parent and they never really think about dividing those roles up. Why should they? But it turns out in our times, we have learnt through the use of science, we have learnt through love, to see those roles as being something that can be done by a number of people. But our law doesn't recognise that yet. Our law doesn't understand the difference between a genetic parent and a gestational parent and a social parent.”
Getting Parliament's ear
Russell was speaking during the Third Reading of the Paige Harris Bill, a specific piece of legislation to help get Paige Harris’ biological mother’s name on her birth certificate.
Katherine Harris died in late 2019 due to complications from a lung transplant, before she and her husband Kyle Harris could officially adopt Paige who was born a few months later, through surrogacy.
That bill, authored by Louisa Wall, had cross-party support and was expedited through Parliament. It was also an eye opener for MPs like Deborah Russell.
“The second reflection I want to offer is about the process that had to be gone through here before we could make the law fit this family. Josh, one of the gestational parents, came along to the select committee and he told us about how hard he had worked to get Parliament to take notice of this issue. He'd emailed and emailed and emailed some more and he'd taken to emailing every day and couldn't get a response. Eventually, he went to the media and thank goodness he did because from then, of course, the issue was picked up by Louisa Wall and we have resolved it very quickly in parliamentary terms.
“But what it showed to us - for me in particular - was that Josh just didn't quite know how to approach our Parliament. I'm really worried that that's the case for lots of other New Zealanders - that they just don't know how to approach our Parliament, how to get something done. In fact, it was an experience of mine a few weeks ago when I sat down with a local who just didn't know how to get going in politics. We live and breathe politics in Parliament every day, so we understand it. But so many of the people we try to serve don't and I think that's a real challenge to us.”
The Improving Surrogacy Arrangements Bill is expected to get its first reading in Parliament in April, after which a select committee will invite public submissions.
Catley said it was a little disappointing that the bill does not really cover international surrogacy arrangements. While Tamati Coffey noted that this was too vast a set of issues for legislation to address right now, Catley pointed out that a lot of intending parents are going international.
That whole area is being included in a comprehensive review of surrogacy law, regulation and practice in Aotearoa New Zealand that the government asked the Law Commission to undertake two years ago.
That report is due this month, so its findings could play a key role in the shaping of this bill.