Why I wanted to tell this story

For almost a decade now I have handled a range of family court cases. Perhaps more than any other field family law is inherently emotional because the cases are about people’s biggest life choices. There are feelings of failure, grief, hate and on occasion happiness.

While it helps to be empathetic, I won’t be the first family lawyer to admit that at times it can also be hard professionally to be objective in the break-up of a family. As the years go on you start to feel insane because you cycle through all sorts of clients and cases. You will have more than one client break down in tears as you advise them of legal realities. Divorce and separations make the most rational people – you know – irrational.

However, every now and then, you come across a case or client and you take a deep breath and you think, well this is the reason why I do what I do. Which is why I wanted to share my recent experience that was unique and inspiring. An experience that makes me realise that I do love my work and love what I do.

I wanted to take this opportunity to speak about this case because it touched me both personally and professionally. It reminded me of the difficulties that people can face and also the amazing gift that other people can give just out of the kindness of their hearts.

Matt and Steph

Steph and Matt met as teenagers and always dreamed of one day having a child. But they knew it would be challenging.

When Steph was born she was three months premature and suffered complications affecting her heart. A new drug was trialled, but it failed, causing major damage to her intestines. At just a few months old she had 17 centimetres of her intestines removed. Since then she’s suffered multiple problems with her digestive system and had many trips to hospital.

Fast forward to 2014 and Steph was diagnosed with endometriosis. She suffered for years with the symptoms of the condition which uniquely affected her due to her own medical history.

Matt and Steph wanted to become parents but the advice of medical professionals could not be ignored. So, at the age of just 25 Steph had a hysterectomy.

The rocky road to surrogacy

Matt and Steph considered all their options as they wanted to complete their family with children. They did a New Zealand adoption course through Oranga Tamariki and started their journey to adopt.

But in 2017, Steph’s sister offered to be an egg doner and surrogate. Matt, Steph and her sister embarked on the process of surrogacy – meeting with a Fertility Clinic where they were assessed and granted the rounds of invitro fertilisation (IVF).

In the months that followed they completed a series of counselling sessions as a couple. They progressed to the stage of meeting with independent lawyers, completing necessary paperwork for reports that were being prepared for the Ethics Committee on Assisted Reproductive Technology (ECART). ECART is a ministerial committee established under section 27 of the Human Assisted Reproductive Technology Act 2004 that reviews, determines and monitors applications for assisted reproductive procedures and human reproductive research.

Along the way, Steph’s sister became unsure about being both egg donor and surrogate, and they put the process on hold. This was, as you can imagine, a very difficult process for a sister and her family, let alone this couple having to go through the emotional rollercoaster of “what ifs” and “whys” once again.

In the end, Steph’s sister decided that she was happy to complete an IVF cycle as the egg donor only, which meant they needed to find a surrogate.

They embarked down the road again with a friend from high school but, unfortunately, she withdrew. For Matt and Steph this was another round on the emotional rollercoaster of “what ifs” and “whys”.

At this point, the process of fertilisation was successful and embryos were frozen while they waited for the right surrogate to come along.

About six months later Matt and Steph put an anonymous post on a New Zealand-based fertility/surrogate Facebook page and this is where they met their surrogate. Over the next few months they got to know each other, they met the surrogate, her family and her children. That particular person stood out as having a selfless motivation to do this. For those of you that do not know, it is illegal to pay a surrogate in New Zealand. Further to this, the surrogate was also an animal lover, appreciating Steph and Matt’s fur baby, Titan.

This person agreed to be their surrogate and they began the process again through the fertility clinic, which included counselling and independent legal advice.

2019 started off with monitoring the surrogate’s fertility cycles and unfortunately again there were many months where it did not go to plan. But in July 2019 their embryo transfer was completed, and 10 days later the results came in that the transfer was successful. At that stage they were officially four weeks and one day pregnant.

All of the years of heartache and struggle did not seem to matter anymore as their dream of becoming parents was getting closer and closer. Throughout the pregnancy they celebrated every milestone, including a baby announcement, a gender reveal and a baby shower. They furnished their home ready for their baby boy’s arrival.

Throughout this process, Matt and Steph made the decision that they would breastfeed their son. So from week 20 of the pregnancy they engaged a lactation specialist. Steph was prescribed a series of medications and also began a daily pumping routine to induce lactation. This process was highly successful which saw her lactating and producing milk without issue.

The birth

In the first week of the Covid Level 4 lockdown, on 1 April 2020 at 11.36pm weighing 7lb 6oz, Grayson Christopher was born at the North Shore Hospital by way of an emergency caesarean.

Due to the implications of lockdown, Steph was the only one permitted to be present in the hospital during the course of the labour, as well as at Grayson’s birth.

Grayson was born, handed straight over to Steph and placed on her chest for skin to skin. Such an overwhelming feeling flooded her. Grayson latched perfectly and was able to breastfeed right from when he was born.

You must be thinking, where is Matt? Matt was in the hospital carpark waiting anxiously, alone, in isolation for the duration of the 12 hour labour.

The final stage – Adoption

Despite the arrangement that Matt and Steph had with the surrogate they had to go through a legal process to adopt their son – even Matt, who was the biological father of Grayson.

So cue the social worker who has been working with Matt and Steph throughout the IVF process. They provide a report to the Ethics Committee, speak to the surrogate (who is legally considered the birth mother) to obtain her verbal consent for an approval pursuant to section 6 of the Adoption Act granting Steph and Matt permission to leave the hospital with Grayson.

A few hours after Grayson’s birth, he is discharged from hospital and an elated Matt and Steph head home to start their new life together.

But to legally complete this process, an application to the Family Court has to be made and on the 13th of September we appeared in the Papakura Family Court before His Honour Judge Mahon under COVID-19 level 3 lockdown conditions.

As Judge Mahon delivers his Oral Judgment giving the reasons for granting a Final Adoption Order, I turn around and everyone in the Court room has tears running down their faces.

Everyone is there – Matt and Steph, the egg doner, the surrogate, the social worker and of course baby Grayson. The Final Adoption Order completes the process for Grayson – Matt and Steph are his legal parents. But they will need to go through the entire process again for Grayson’s sibling.

For me it was an overwhelming experience, a unique case and one I will always remember in my career. That day will forever remind me of the force for good that lawyers can be.

Should the law change?

In terms of the law, there is no legal framework around surrogacy.

The subject of surrogacy sheds light on a number of complex issues such as legal ownership of an embryo once transferred to the surrogate, enforceability of surrogacy agreements and the legal status of the surrogate and genetic parents.

The Adoption Act 1955 was made during a time where children being born out of wedlock was treated as if it never happened, so the idea of surrogacy and the complex issues of women birthing children not biologically related to them is never going to fit within this legislation.

The reality is that society – our values, our science, our expectations are well beyond the 1955 adoption legislation and this specific legislation has failed to catch up.

Earlier this year Labour MP Tāmati Coffey lodged a Member’s Bill, Improving Arrangements for Surrogacy Bill, aiming to update the rules on surrogacy. This followed his own road to parenthood with husband Tim Smith.

The bill will amend five acts and two sets of regulations to simplify surrogacy arrangements, ensure information recorded on birth certificates is complete and provide a way to enforce surrogacy arrangements in case an intending parent chooses not to take custody of the child.

Steph and Matt are hopeful that parliament will move on the new proposed surrogacy bill as a priority.