After five years of delays and consultations, a bill to update our surrogacy laws is progressing again, Madeleine Chapman writes in today’s excerpt from The Bulletin.

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A gay couple has been granted an adoption order by the Family Court in order to bring their US-born son to New Zealand, reports Ric Stevens for the Herald. The boy was conceived through surrogacy, using a donated egg and the sperm of one half of the couple. In other words, the woman who birthed him has no biological connection. The couple’s names are on the boy’s US birth certificate and they are his legal parents there.

And yet, under New Zealand law, the surrogate (and the surrogate’s partner, if there is one) are the only recognised parents of the child, meaning the couple’s application for New Zealand citizenship for the boy was denied, even though his biological father is a New Zealand citizen. 

‘Outdated’ law even 20 years ago

This is not a new story. While the case itself is recent, near identical headlines can be found on New Zealand news sites from 2024, 2021 and 2020. In 2020, Labour MP Tāmati Coffey submitted the Improving Arrangements for Surrogacy Bill, one day after he and his husband Tim adopted their own child who is biologically Tim’s. The process involved (and still involves) lawyers, counsellors and visits from Ōranga Tamariki social workers to determine if they would be suitable parents. Coffey said the process of having to adopt your own biological child was “absolute craziness and shouldn’t be allowed”, reported the Herald at the time.

In 2022, the Law Commission returned a review on surrogacy in Aotearoa, finding the current surrogacy laws no longer fit for purpose. It also made a point of mentioning how long-held this belief was.

“In its 2005 report, New Issues in Legal Parenthood, the Law Commission found there was an urgent need for reform. Since then, there have been no changes to the legal framework despite both growing numbers of surrogacy arrangements and increasing dissatisfaction with the current law.”

The changes

The Law Commission made 67 recommendations regarding surrogacy laws in New Zealand, resulting in a redrafting of Coffey’s bill in 2023 and another round of public consultation. Nearly five years after being drawn from the biscuit tin, the select committee recommended in April that the Improving Arrangements for Surrogacy Bill pass in its redrafted form. 

The changes to law would be extensive, with intended parents no longer required to adopt their children born via surrogate. Instead, in most cases, legal parenthood would be granted to the intended parents from birth with a surrogate declaration form submitted alongside the birth certificate. The declaration requires the surrogate to re-consent to having no parental rights or responsibilities, but “the surrogate’s consent would not be valid if it was given before the child was seven days old”. For comparison, clinic sperm donor’s legal rights and responsibilities are void at the point of fertilisation. 

This process would, in theory, be straightforward for those with surrogacy arrangements through fertility clinics and approved by an ethics committee. For those with surrogacy arrangements outside of clinics (and therefore the ethics committe), they’d still have to go through the courts, but would likely not be required to legally adopt their own children.

The amendments also clarify which costs can be reimbursed (surrogacy is voluntary-only in New Zealand), recognising legal parenthood in other countries, and clarity around incest laws in regards to non-biological surrogate families.

A question of ‘double dipping’

During consultation, the select committe discovered that surrogacy is one of few situations in New Zealand where two people can simultaneously receive paid parental leave for the same child. Under current legislation, the surrogate qualifies for 26 weeks’ paid parental leave, as does the primary caregiver, which the committee feared could be viewed as “double dipping”.

The select committee was unable to make a recommendation on this, “however, as the surrogate will no longer have care of the child and does not need bonding time, we do not think that the surrogate should automatically be entitled to the full 26 weeks of paid parental leave”. The committee suggested separate 14-week entitlements for “recovery” and “bonding” instead.

The Improving Arrangements for Surrogacy Bill is due its second reading later this month.