Changes to surrogacy laws are the focus of a new review being conducted by New Zealand’s Law Commission, which is examining in particular what it refers to as the ‘legal confusion’ regarding legal parentage of babies born to surrogate mothers.

Those advocating for a change in the law say that these babies can be left in “legal limbo” for the first few months of their lives because of the way the law currently operates.

This is because the law regards the surrogate mother and her partner (if the partner consents to the assisted reproduction) as the child’s legal parents. Advocates are calling for reform, with some judges in New Zealand describing the law as “creaky” and “inadequate”. Several pieces of legislation govern the issue. 

For example, the Human Assisted Reproductive Technology Act prohibits commercial surrogacy and regulates gestational surrogacy (where the child is not genetically related to the surrogate parent). But the Act does not regulate the parentage of the child. This is done by the Status of Children Act. 

The review is examining several aspects of surrogacy regulation, and “will make recommendations to ensure the law meets the needs and expectations of New Zealanders and protects and promotes the rights and interests of people involved in surrogacy arrangements, including children born as a result of surrogacy arrangements, surrogates and intended parents”.

A particular focus of the review is to examine how the law should attribute legal parenthood in surrogacy arrangements. 

“A key problem with the current law relates to legal parenthood. The law does not recognise surrogacy as a process that creates a legal parent-child relationship between the intended parents and the surrogate-born child. Instead, the surrogate and her partner (if she has one) are the legal parents at birth, according to rules that were originally designed to clarify the legal status of gamete donors. Intended parents must adopt the child under the Adoption Act 1955 to be recognised in law as the child’s parents.” 

Intending parents do not find this arrangement and its contingent uncertainty acceptable.

The discussion paper states upfront the position of the Commission:

“We think it is time the law caught up with the reality of surrogacy arrangements. In this Issues Paper, we propose a new legal framework to provide for the recognition of the intended parents as the legal parents of a surrogate-born child.” 

Guiding principles outlined in the discussion paper include the fundamental principle about the best interests of the child:

“Because surrogacy arrangements are concerned with the creation of a child, that child’s best interests should be paramount in surrogacy law.” (emphasis added)

The paper then provides some guidance about what the best interests of the child may involve, including “not only providing for their immediate safety and welfare but also considering the long term implications of surrogacy for the child.”

“Rights that are particularly relevant in the surrogacy context include rights to identity, nationality, family life, health, freedom from discrimination and protection from abuse, exploitation and sale.”

It is of great concern, however, that perhaps the greatest issues affecting the ‘best interests of the child’ are not addressed in this paper, nor are participants asked to provide responses to them. 

The first is the reality that surrogacy deliberately creates then removes a child from its birth mother. It is difficult to see how allowing a child to be brought into the world with the intention of severing the maternal bond with its birth mother could ever be in the child’s best interests. 

The second is the extent to which surrogacy treats children as commodities to be traded, which can hardly be said to be in their best interests. And if something goes wrong, as can often happen in transactions, will the ‘best interests’ of the child really still be paramount? Like, for example, if a disability is detected, or one party no longer wants to continue with the arrangement? 

The fact is, that the “process [of surrogacy] deliberately preferences the needs of the commissioning parents above those of the most vulnerable parties involved in the ‘transaction’ – the child and its birth mother.”

As one commentator has stated, “even in perfect conditions, with no whiff of economic coercion, the surrogacy arrangement necessarily depends on the breaking of the maternal bond”.

Once again, law reform in this area, with its focus on providing greater clarity for intended parents, can run the risk of forgetting the children involved in the transaction. As journalist Sarah Dingle states, when describing her own experience of being donor-conceived, “[the child’s] feelings about the whole business come last”. 

We must make sure that it is not the children who come last when it comes to law reform regarding this highly controversial matter, simply because they cannot speak up for themselves.

Rachael Wong is the CEO of Women's Forum Australia and an Adjunct Lecturer in the School of Law at the University of Notre Dame Australia. She has a particular interest in the crossover between law, ethics,...