Surrogacy and adoption
When a child is born by IVF to a surrogate mother in New Zealand or overseas, the intending parents must apply to adopt the child in order to become their legal parents.
Surrogacy and legal parental rights in New Zealand
If you’re considering having a child with the assistance of a surrogate mother, it’s important to understand that under New Zealand law you will not have any legal parental rights unless you adopt the child. At the time of birth, the child’s legal parents will be the surrogate mother and her partner, if she has one. To be a legal parent, the partner must have consented to the surrogacy arrangement.
It’s in a child’s best interest to have a legal relationship with the parents who will be raising them. Therefore you’ll need to apply to adopt your child through the New Zealand Family Court, so the parental rights can be transferred from your surrogate mother and her partner, to you.
Surrogacies arranged in New Zealand
In New Zealand, surrogacies are an altruistic arrangement on the part of the surrogate mother and it’s illegal to pay her more than her reasonable expenses.
Some surrogacies occur by in-vitro fertilisation (IVF) and are arranged through a fertility clinic. These surrogate arrangements need to be approved by the Ethics Committee on Assisted Reproductive Technology (ECART), to make sure the surrogacy arrangement is in the best interests of the child. As part of this process, you’ll need to be assessed by us and approved as suitable adoptive parents.
IVF surrogacy arrangements need to be approved by ECART.
Some traditional surrogacies, where the surrogate mother’s egg is used, are completed privately and don’t involve a fertility clinic and ECART. But you’ll still need to complete an adoption order for the child to have a legal relationship with you.
As with all adoptions, you’ll need to be approved by us as a suitable adoptive parent to the child. A social worker will meet with you and make an assessment against set criteria. We’ll also discuss what information will be accessible to the child about their genetic history and birth story. You’ll need to provide references and information about any criminal offences. You’ll also need to give permission for us to check police records and our child protection database.
Family Court process
Once the baby is born, your lawyer will lodge your application for the adoption with the Family Court. You’ll need to have the consent of the birth mother, and if necessary her partner, before the application can be lodged.
We will be requested by the Family Court to provide a social work report which will form a part of the information provided to the judge at the hearing. The Family Court judge will then consider whether the adoption is in the best interests of the child. If an adoption order is granted, a new birth certificate will be issued for your child, and this will include your names.
International surrogacy, both commercial and altruistic, is a complex and evolving area which raises significant legal and social issues. The birth of a child to a surrogate mother in one country, where the intending, and often genetic, parents are from another country, involves enormous legal complexities.
In addition to this, surrogate mothers often live in countries where there are weak regulations and laws around surrogacy, and poor health standards. This increases the risk of humanitarian problems — where the surrogate mother and child may be vulnerable, and their rights not well-protected.
If you’re considering an international surrogacy arrangement, we strongly caution you to consider all the risks. It’s important that you get independent legal advice about both New Zealand law and the law of the country where the arrangement will take place. It’s particularly important that you get legal advice about how your child will exit the country they’re born in.
You must also take care to be guided by the government surrogacy regulations of the overseas country.
If your child has been born via an international surrogacy arrangement, under New Zealand law, you’ll have no legal relationship to your child at the time of their birth. In all cases, the legal parents are still the surrogate mother and her partner.
To become your child’s legal parents, you’ll need to apply to adopt them in the New Zealand Family Court. This is important for your child’s legal security. If you don’t establish this legal relationship, you won’t have any legal parental authority and the child will have no inheritance rights. Also, in most cases, your child will only have temporary immigration status in New Zealand and they won’t be entitled to New Zealand citizenship.
A number of agencies in New Zealand are involved in managing cases where a child has been born through a surrogacy arrangement overseas. These include Oranga Tamariki—Ministry for Children, Immigration New Zealand, the Department of Internal Affairs and the Ministry of Foreign Affairs and Trade. The joint-agency approach is outlined in the information fact sheet.
Published: March 13, 2017