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Surrogacy law outdated say researchers

26 January 2017

A major University of Canterbury research project funded by the Law Foundation says changing social and scientific conditions are rendering child surrogacy law increasingly outdated, forcing judges to “creatively interpret” existing law.

Researchers say New Zealand should join the UK and Australia in considering law reform around child surrogacy arrangements.

Project team leader Debra Wilson says the “Baby Gammy” case was an example of the complex situations not envisaged in current legislation. The case involved the Thai surrogate mother of a child with Down syndrome, initially reported to have been abandoned by his Australian intended parents. They were seeking custody of the other twin when it was discovered that the intended father was a convicted child sex offender.

“It used to be that a child came from two people. Now there are potentially multiple people with a legal claim to being involved in bringing a child into the world,” Dr Wilson says.

Under New Zealand law, a surrogate mother and her partner are considered the legal parents of a child – the only way the intended parents can become legal parents is through adoption. This becomes more complicated if the birth takes place overseas, where relevant law may be different from ours.

Dr Wilson says the issues in international surrogacy are numerous, complicated and not completely understood. The inadequate law was leading to intended parents not having their relationships to their children legally recognised, which may create issues for the child.

She says New Zealand should reform its surrogacy laws, in line with moves in Australia, where a model national law on surrogacy has been mooted, and in the UK, where the Law Commission has proposed adding surrogacy to its work programme.

Dr Wilson is currently surveying lawyers in New Zealand on their experiences with advising clients on surrogacy arrangements.  

For more information on the project, visit www.lawfoundation.org.nz or for enquiries about the research, contact Dr Wilson on debra.wilson@canterbury.ac.nz.

Last updated on the 16th September 2019