In November 2020 the New Zealand Law Commission|Te Aka Matua o te Ture announced that a Review of Surrogacy laws had been added to its work programme. With a reporting date of early 2022, this is a project that is clearly being fast-tracked by the current Labour-led Government. It coincides with a Review of the Adoption Act by the Ministry of Justice, although that project will not report until at least 2023.
The current New Zealand law on surrogacy is brief, consisting of only two provisions in the Human Assisted Reproductive Technology Act 2004 (the HART Act). The first deems surrogacy arrangements to be not illegal but not enforceable and prohibits any payment to the surrogate (although medical and legal expenses are permitted). The second prohibits any person advertising for surrogacy (whether intended parent, surrogate or third party). Both sections were borrowed from a 1997 assisted reproductive technologies bill and were inserted without debate into the HART Act at the last minute in 2004 when the Parliamentary Select Committee realised that no provisions relating to surrogacy had been included. The inclusion of surrogacy in the HART Act also had the consequence that fertility clinics in New Zealand cannot carry out any procedure in relation to surrogacy unless prior approval is obtained from the Ethics Committee on Assisted Reproductive Technology (ECART), which considers each application individually.
There are no surrogacy-specific provisions relating to parentage or transfer of parentage in the HART Act. As a result, the default provisions in the Status of Children Act 1969 and the Adoption Act 1955 apply.
The specific catalyst for the Review of Surrogacy laws is unclear, although it could be noted that judges frequently express frustration with the need to use the Adoption Act as it is not fit for purpose. The HART Act itself is rarely referred to. In the 37 surrogacy cases brought to court since its enactment, only two cases mention the Act. There is a lack of clarity over the role of payment in surrogacy arrangements in New Zealand. The standard approach now adopted by most judges in determining adoption applications following surrogacy involves the consideration of five issues (consent of surrogate, whether the applicants are fit and proper persons, welfare and best interests of the child, whether an interim or final order is made and whether the social worker report should be released). There is no reference to a consideration of payment.
In addition to judicial dissatisfaction, a New Zealand Law Foundation project on Rethinking Surrogacy Laws showed that a majority of the public and family lawyers thought the law required updating. As an example of public opinion, 42 percent of the public thought that surrogacy laws should be reconsidered in the next five years, and 19 percent thought it should be considered in the next year. Only 9 percent thought reform was not needed, with the remaining 30 percent being unsure. As an example of lawyer feedback, less than 5 percent of family lawyers thought the current provision in relation to payments was appropriate.
In 2019 a petition signed by over 32,000 people was presented to the New Zealand Parliament asking for reform to surrogacy and adoption laws. Repeated private member bills have lapsed while waiting to be heard, although on 23 September one bill was introduced into Parliament and will be debated in the near future.
The Law Commission's Issues Paper is a substantial piece of work. It begins by discussing the practice of surrogacy in New Zealand, and establishing guiding principles for surrogacy law reform. It then devotes an important chapter to understanding surrogacy from a Māori (New Zealand's Tangata Whenua, or indigenous people) perspective. While this is an issues paper setting out potential options, the Commission does indicate which option(s) it supports.
Prior approval of surrogacy arrangements: The Law Commission supports the continued use of the ethics committee process, while recognising that this could be improved. It acknowledges criticism that the process can be seen as slow, complex, expensive and overly invasive. It also acknowledges the increased workload of ECART, noting that surrogacy applications have increased from 11 in 2011 to 37 in 2020, with reports that one fertility clinic had drafted 21 applications in the first three months of 2021. Given that ECART meets five or six times a year, and considers all applications for assisted reproduction that are not expressly permitted or prohibited under the HART Act, these delays appear likely to continue.
Financial Support for Surrogates: The Law Commission acknowledges the uncertainty around the HART Act prohibition on payment, particularly whether it includes reasonable expenses, insurance and compensation for time off work. It notes that lawyers, fertility clinics and ECART itself can give conflicting advice to intended parents. It also notes survey evidence showing a lack of public support for the current approach. It recommends that the HART Act clarify the position of payment for pre and post birth expenses, but that the payment of a surrogacy 'fee' continues to not be permitted.
Legal parenthood: The Law Commission acknowledges the inappropriateness of both the Adoption Act in general, and also the specific criteria for adoption, in surrogacy cases. It also notes that applications for adoption can be lengthy and costly. It proposes a new regime where parenthood is transferred by an administrative process if two criteria are met: first, the surrogacy has prior approval by the Ethics Committee, and second, the surrogate has confirmed, post-birth, her consent to the transfer of parentage. Where one or both of these criteria are not met, an application to the Family Court can be made for a 'post-birth' judicial order (which is not explained in detail but appears to differ from adoption).
International Surrogacy: This is not mentioned in the current law, thus requiring the intended parents to obtain an entry visa (in accordance with a set of Cabinet-approved non-binding Guidelines and then engage with the adoption process. The Law Commission recommends that this approach continue, but that the use of the adoption process be replaced with its previously recommended 'post-birth' judicial order.
Access to Surrogacy: the final section of the Issues Paper considers several issues relating to access to surrogacy: availability of information, the prohibition on advertising, the lack of experienced surrogacy lawyers, and the availability of public funding. The Commission does recommend removal of the prohibition on advertising, and considers the idea of setting up a surrogate/intended parents register to better enable people to connect.
Overall, the Law Commission Report is substantial. Submissions from the public on the Issues Paper are due on 1 October, and from there a final Position Paper will be written for submission to the relevant ministers in early 2022.