Parents awaiting new surrogacy laws, while experts call for streamlined process

Surrogate Fiona Dalziel delivered a healthy baby to a couple in May, but technically, she is still the parent while she wades through the court process.

“They are wonderful dads, and despite all the hurdles and the difficulties, it was a really positive journey for me, and for them,” Dalziel said.

The couple have full-time care of the child, but Dalziel and her husband were still technically her legal parents until the adoption process was complete – with no court date yet set.

The journey to surrogacy can be long, expensive and challenging – only to get there and face the lengthy and costly process to adopt your baby, advocates for a law change say.

While New Zealanders wait for the Government to deliver new surrogacy laws, experts are calling for a streamlined process with financial compensation for surrogates.

Surrogacy is where someone agrees to become pregnant and give birth to a child on behalf of another person or people who will raise the child.

Dalziel, a Hamilton-based Tompkins Wake senior associate, said if we can remove some barriers, then we might to be able to “get some more teams together”.

The laws as they stand have been described as outdated and degrading by some, and as causing financial and emotional distress.

Intending parents must currently adopt their baby from the surrogate after it’s born, even if she had no biological connection to the baby.

It was a process done in Family Court with Oranga Tamariki, taking months and causing huge financial and emotional strain with minimal legal protections for either party.

Dalziel said while it was not an efficient use of the agency’s resources, it also added a long and costly process to an already lengthy and expensive journey.

Oranga Tamariki currently treated surrogacy like any adoption, with check-ins, house visits and a written report supplied to the court, before approval to adopt was given.

It pushed surrogacy out of reach for many – including people who would make incredible parents, Dalziel said.

The journey to even get to surrogacy can be hard and expensive. People might have tried IVF, found out they were infertile, or had miscarriages.

“For some, they have just found out they can’t themselves carry. It’s how can we make this easier? And then the cost.”

A Law Commission work group made 63 recommendations to the surrogacy law review in 2022, including removing the need for intended parents to adopt their child, and establishing a new process.

It also included clarifying the types of payments a surrogate can receive for costs and accommodating international surrogacy arrangements.

These were being considered alongside Tāmati Coffey’s private members bill, Improving Arrangements for Surrogacy – with a report due from the Government’s Health Committee in August.

Tompkins Wake partner Zandra Wackenier sat on that working group and said New Zealand parents had been waiting a long time for this law change.

“We need a streamlined law that protects surrogates, the intending parents and, most importantly, the child.”

To gain that protection, Wackenier believed all surrogate pregnancies should require Ethics Committee on Assisted Reproductive Technology approval.

The two types of surrogacy

In New Zealand, surrogacy is either gestational, where the surrogate is not genetically related to the baby, or traditional, where the surrogate is.

A gestational surrogacy required approval – including medical testing, counselling, legal advice, and consultations with Oranga Tamariki before the process started.

But Wackenier said traditional surrogacy did not require the same pre-approvals because it didn’t involve assisted reproduction or IVF.

If ethics committee approval was granted and consent from the surrogate was given in all cases, she said the transfer of parentage process could be a simple court application.

It would also give everyone access to independent legal advice and counselling.

Support for the surrogate: What are the rules?

Ensuring surrogates are compensation appropriately was also important, Wackenier said.

In New Zealand, you can’t pay someone to be your surrogate, you can only cover the costs of going through the process.

Surrogates were instead compensated for legal, medical and counselling costs.

Dalziel said there was a whole range of things surrogates needed that didn’t fit into those boxes, like physio, or maternity clothes, or taking time off work for pregnancy-related reasons.

“No one is saying that New Zealand should switch to a commercial model. But they shouldn’t be had at financial risk, you shouldn’t come out financially worse off.

“More families would be in a position to offer to carry if they had that certainty of financial security.

“If intended parents were able to carry they would, so then they would naturally have all those costs. It shouldn’t be any different.”

She said changes to the law would “definitely” improve accessibility.

Law change ‘doesn’t give the sense of safety’

But Lee Barrett said the proposed law change too heavily favours surrogates.

Barrett was stuck for months in Mexico with his Mexican husband Antonio Laguna and newborn son Rocco at the height of the Covid-19 pandemic, due to the complexity of New Zealand’s surrogacy rules, and says the recommendations don’t go far enough.

After the family finally made it back, they were still not recognised as Rocco’s parents and were going through the adoption process in the Family Court.

He described the system as “outrageous”, but previously told Stuff he could not understand why the Law Commission proposal required the surrogate to give consent again after the birth for the intended parents to be recognised legally.

It was crucial all parties consented and that there were steps to protect the surrogate, he said, but this should happen prior to conception.

“This law change doesn’t give us the sense of safety and security.”