New Zealand Law Society - Law Society recommends new surrogacy law

Law Society recommends new surrogacy law

The New Zealand Law Society | Te Kāhui Ture o Aotearoa has submitted on the Law Commission’s review of surrogacy law in Aotearoa New Zealand, Te Kōpū Whāngai: He Arotake.

In a comprehensive submission prepared by its Family Law Section, the Law Society has recommended that reform of surrogacy law be achieved through a stand-alone statute, rather than by amendment to several pieces of existing legislation. This will ensure that surrogacy law is user-friendly and accessible to all parties.

The Law Society supports the proposed guiding principles for reform of surrogacy law, and recommends additional principles focusing on respect for the human dignity and mana of all parties to the surrogacy, and the need for informed consent at every stage.

Consistent with the principle that the best interests of the surrogate-born child are paramount, the Law Society supports the state collection of information about the genetic and gestational origins of the child, and the availability of this information to the child in future. The Law Society also considers that any law should enable Māori to act in accordance with tikanga, when they wish to do so.

Currently, legal parenthood in surrogacy arrangements is established by the Adoption Act 1955. The Law Society agrees that this is inappropriate and not fit for purpose, and favours an administrative model, where the surrogate is the legal parent at birth, and then confirms her consent for the transfer of legal parenthood to the intended parents. This must have sufficient safeguards to ensure that New Zealand surrogacy arrangements are accepted internationally.

The Issues Paper also covers a wide range of procedural matters, on which the Law Society has submitted. Of note, the Law Society considers that:

  • Oranga Tamariki should not continue to have a role in surrogacy matters, aside from administrative checks of whether there has been any prior notification of an intended parent.
  • With increased capacity, ECART should continue to be responsible for approving surrogacy arrangements. All clinic assisted surrogacy arrangements should obtain ECART approval.
  • Surrogacy arrangements must be recorded in writing and signed by the parties.
  • Financial support for surrogates could be prescribed as in the Canadian Assisted Human Reproduction Act S.C 2005. Agreements for costs should be enforceable.
  • Comprehensive and updated information about surrogacy should be provided by the Ministry of Health.

The Law Society looks forward further involvement as this reform continues.