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Gestational surrogacy investigation wins prize

22 November 2018 - By Angharad O'Flynn

Sarah Alawi, who won the latest Honourable Rex Mason Prize for Excellence in Legal Writing, was introduced to the subject of her article when she joined the litigation team of Auckland law firm Gilbert Walker.

Sarah, who is an associate at Gilbert Walker, won the award for her New Zealand Law Review article "Gestational Surrogacy Disputes: A Proposed Cause of Action for Intended Parents in New Zealand".

She attended the University of Auckland and graduated with BA/LLB(Hons) degrees, majoring in sociology and criminology for her Arts degree.

A writer in her early days at university, Sarah was involved in student-run legal publications both in New Zealand and in the Netherlands.

Enjoying the strategic and problem-solving aspect of litigation, she chose to work in the commercial civil litigation arena after completing two years working as a Judges’ Clerk. This speciality introduced her to the subject of New Zealand’s Gestational surrogacy laws and inspired her to dig further into this niche issue.

“I wanted to explore what should happen when the surrogate mother in a gestational surrogacy context refuses to uphold the terms of a pre-conception agreement and changes her mind about relinquishment,” says Sarah.

Her article offers some insight into New Zealand’s surrogacy laws and argues that they are outdated and in need of review.

“Through the lens of privacy law, I explored how and why gestational surrogacy arrangements should be enforced and how a cause of action for intended parents could be formulated,” says Sarah.

“Assisted reproductive technology is a growth industry; gestational surrogacy is just one example.  

“With the rise of assisted reproductive technology, our courts will face a new stream of litigation dealing with the enforceability and interpretation of pre-conception agreements after relationship breakdowns. That’s because, despite the sophistication of new birth technologies, their use depends on functioning human relationships.

“The ultimate question for the courts – and litigators – in future will be: what should happen when one party in a pre-conception agreement refuses to uphold its terms after a relationship breakdown. Like any dispute, the answer should turn on the facts and be supported by a guiding framework.”

The Honourable Rex Mason Prize for Excellence in Legal Writing was established in 1973 and is New Zealand's oldest legal writing prize. It commemorates Henry Greathead Rex Mason (1885-1975), one of New Zealand's longest-serving MPs.

The prize – which is valued at around $1,000 each year – is managed by the Wellington branch of the New Zealand Law Society, as trustee for the Honourable Rex Mason Trust. Under the terms of the trust, the judges are a nominee of the Chief Justice, the Dean of Victoria University of Wellington Law School, and the Editor of the New Zealand Law Journal.

Sarah’s award was presented on 6 November 2018 by Professor Mark Hickford, Dean of the Victoria University Law School with Wellington branch council members also in attendance.

Last updated on the 22nd November 2018