The term surrogacy refers to a conception technique where a female carries a baby for another couple who will then become the parents of the child after the child is born. Surrogacy is often used when a female is unable to carry a child as there is some issue related to her uterus.

Surrogacy comes in two forms. The first is natural and the second is IVF. In the case of a natural surrogacy, a female uses her own egg to carry a child for another couple. In the case of IVF, an embryo has been created in a laboratory. This is then implanted into the surrogate’s uterus.

A surrogate is referred to as the ‘intending birth motherin New Zealand and those who require surrogacy are referred to as the ‘intending parent. In most cases, IVF is used to create the embryo. If this is successful the surrogate carries the child and gives birth to the child. After birth, the intending parents then legally adopt the child, this is similar to an employment contract.

In New Zealand surrogacy is legal as long as the surrogate agrees to the surrogacy and there is no compensation involved other than the cost of the expenses. Any other kind of surrogacy arrangement would be classed as illegal in New Zealand as stated under the Human Assisted Reproductive Technology Act 2004 (HART). This is otherwise known as commercial surrogacy.

Ethical Matters

The Process

Any legislation which is in place deals with commercial surrogacy cases. There is no exact legislation which deals with standard surrogacy cases and therefore the Hart Act has become involved in these cases too. Any surrogacy case need to be approved by the ‘Ethics Committee on Assisted Reproductive Technology.’ The following has to be in place:

  1. Where there is one intending parent, he or she will be a genetic parent of any resulting child; or
  2. Where there are two intending parents, at least one will be a genetic parent of any resulting child; and
  3. There has been discussion, understanding, and declared intentions between the parties about the day-to-day care, guardianship, and adoption of any resulting child, and any ongoing contact; and
  4. Each party has received independent medical advice; and
  5. Each party has received independent legal advice; and
  6. Each party has received counselling in accord with the current Fertility Services Standard.

Donors

It’s not uncommon that sperm and egg donors are required in a surrogacy case. These donors can be obtained via a fertility clinic or directly from the donor themselves. Once again, no compensation can be received for a donor, other than compensation related to the costs related to donating.

Adoption

After the child is born, he or she will need to be legally adopted by his / her parents. This is all governed under The Adoption Act 1955.

The Surrogate Mother

Especially with cases related to international surrogacy, no surrogate mother should be made forced to enter a surrogate agreement. Any agreement should have ‘informed consent’. Due to this a child will not be provided with a temporary travel visa for New Zealand until the Ministry of Immigration agrees that informed consent has been provided by the surrogate mother.  

Biological Background

The Hart Act 2004 does state that any child has the right to know about their origins and biological background. Therefore, they have a legal right to know about their background irrespective of the fact that their genetic parents have no legal rights.

Overseas Surrogacies

As mentioned previously, surrogacy in New Zealand is not illegal. However, if any payment takes place between the surrogate and the intending parents, it does become illegal. New Zealand has seen a growing trend whereby residents are looking to countries such as Mexico, Nepal, Cambodia, Thailand and India for potential surrogacies. These countries are deemed as high risk as there are no regulations is place with regards to surrogacy agreements. The New Zealand government has advised intending parents to avoid getting involved in a surrogacy agreement with anyone from these countries because of this issue. The law has changed so that intending parents who do seek surrogacy from overseas now have to face New Zealand law once the child enters New Zealand.  

Problems with International Agreements

The main cause of problems with surrogacies that are international is that the child’s nationality becomes an issue. This is because when a child is born in a particular country they usually take on the nationality of that country. However, a child born overseas does not meet the criteria set out by the New Zealand government to become a citizen by descent. The only way that this can be overturned is if the child is adopted.

Renting a Womb

Across the world, surrogacy is a real emotive subject and many governments are trying to legislate so that the surrogate and the intending parents are protected by law. As this situation is highly sensitive a lot of surrogacy agreements that take place are done outside of the laws of most countries. Women around the world are renting out their wombs to intending parents in the hope that they produce a child that can be free from any litigation. The issue with this is that this is attractive to those women that are struggling financially which means that they may not necessarily be fully aware of the emotional link they will have to the child that they are carrying.

The debate related to surrogacy will be something that’s debated for years. Whether you are for or against it, we have to remember that we are using technology to create life which cannot be a bad thing as long as it’s done in the most appropriate manner possible.

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