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Law Commission recommending significant changes to surrogacy law

The Law Commission is recommending a new pathway to parenthood that doesn’t require adoption for parents of a surrogate-born child.

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The Law Commission is seeking feedback on its surrogacy proposals. Source: 1 NEWS

The Government asked the independent Crown body to review New Zealand’s surrogacy laws last year.

This week He Kōpū Whāngai: He Arotake – Review of Surrogacy was published with the Commission seeking feedback on its recommendations to the Government until September 23.

In the review, the Commission states the adoption process is inappropriate for surrogacy agreements.

‘The law fails to promote the child’s best interests… The law does not respect the intentions of the surrogate and intended parents,’ the review states.

“Surrogacy arrangements affect the child as well as the parties involved and we want to make sure the law is right for everyone,” Law Commission principal advisor Nichola Lambie said.

The proposal would see parents legally recognised from the birth of their child, if the surrogate gives their consent, and if the surrogacy arrangement was approved by the Ethics Committee on Assisted Reproductive Technology, a requirement in some scenarios.

Otherwise, a Family Court application for legal parenthood would still be required.

“I feel that the protection of rights is more heavily placed on the surrogate than it is on the intended parents or the child born from surrogacy,” father Chad Walters told 1 NEWS.

“To me I question that weight and that power to revoke consent especially when the gametes are not that persons.”

Walters and his partner Blair McNaughton became legal parents to their daughter Kora in November last year through adoption, four months after she was born through an egg donor and surrogate.

Law Commission principal advisor Nichola Lambie said ensuring the surrogate person has the opportunity to give consent ensures that the arrangement is robust and that’s in the child’s best interests.

“All going well, they would be recognised as legal parents after birth, if there is a disagreement, we think that that is something the Family Court need to be involved in as they are with any dispute over a child,” Lambie said.

Walters said the proposal doesn’t go far enough.

“In our scenario, given that we started this process in Canada, we avoided the ECART ethics approval, therefore we would be in pathway number two... pathway number two still includes a social worker assessment, still includes Family Court involvement and even in the report that they’ve just released they acknowledge that it’s not much different than what it currently is.”

Husband McNaughton said he thinks it’s important for there to be some checks and balances to ensure reproductive technology is being used ethically.

“But the kind of detail that they go into with these screenings and all the questions that you’re asked seems unnecessary to me,” he said.

Walters said what was meant to be a time of celebration when Kora was born and a period of adjustment to becoming parents, was negatively affected by the court process to becoming her legal parents.

“Doing it this way completely undermines us as intended parents and it devalues us and our intentions,” Walters said.

He said he felt heartbroken receiving mail in regard to Kora that was addressed to the surrogate and what would happen in an emergency was another stress caused by the situation.

“Chad is the father genetically and so that birth certificate that we were given at birth was a lie really,” McNaughton said.

“Starting her life on a non-truth, on a fiction, is certainly not in the best interest,” Walters said.

“If we were to have, God forbid, an accident before adoption takes place and that’s the only document and that’s the only thing that she has access to, it is not true… and I know that’s that something that needs to change.”

The Law Commission review also includes recommendations surrounding Māori tikanga, the child’s right to information, international surrogacy, Government funding for related surrogacy agreement costs and compensation for surrogates.

Margaret Casey QC, a surrogacy lawyer that was part of the Commission’s expert advisory group, supports the proposals as a way to simplify the process but maintain the safeguards.

“Many couples that I act for go overseas to create their families because they can’t find surrogates and they can’t find donors.

“It would be really good if through these changes we could encourage people to remain in New Zealand for their surrogacy processes,” Casey said.

She said this would be beneficial for all people involved, including the child, so the relationship can grow between parties during pregnancy and so contact can easily continue afterwards.

She said it’s important that compensation for surrogates is highlighted in the review.

“What they (intended parents) don't want is for the surrogate to go backwards financially… compensation is something that is paid in lots of other jurisdictions,” Casey said.

The Law Commission expects to deliver the final report to the Government next year.

Labour member of parliament Tamati Coffey is waiting for his Bill covering a range of proposed surrogacy law amendments to be drawn from the member’s ballot.

He told 1 NEWS, with the support of a few more MP’s the Bill could bypass this process and be introduced.