ECART - Legal
Adoption Act 1955 was created in 1955, that is 67 years ago! New Zealand and the world has changed A LOT in last 67 years. Perception of adoption and surrogacy has changed. If you have conversation with your grandparents and what they think about adoption, they are going to have a very different perspective than if you talk to younger people today.
So what are some of things other than perception that have changed? 1955 was 23 years before the world's first baby born via IVF treatment in 1978. There was no such thing as gestational surrogacy in 1955. New Zealand did not have our own first IVF baby until 1984! Now most of us know someone who has been through fertility treatments personally. We are long overdue for an update on Adoption Act 1955.
Traditional surrogacy (TS): This is where the surrogate uses her own eggs. The sperm may be from intended parents or donor sperm. Creation of embryo can take many paths including IVF, IUI, or home insemination.
Gestational surrogacy (GS): This is where the surrogate carryes the baby that does not contain any of her genetic material. Egg and sperm can be from intended parents and one or both could be donated material. IVF is necessary for GS.
Independent legal advice for both intending parents and surrogate is a requirement for ECART. What this means is that we speak to our lawyer and the surrogate has a different lawyer from another lawfirm for legal advice.
This is an important step as there is very little legal protection and guardrails for neither intending parents nor surrogates as at March 2022. Only altruistic surrogacy is legal in Aotearoa New Zealand today. You cannot compensate the surrogate for being a surrogate. Pregnancy is a major life and medical event and as such covering costs of life and living insurance for the duration of pregnancy and post-partum are allowed expense that intending parents can cover.
However, the legal framework today does not cover the realities of surrogacy in practice. There is no legally enforceble agreement that can be put in place and in case of legal disputes and escalation it will be decided in family court. If a dispute was to end up in the family court, the court would rule in the best interest of the child. As far as we are aware a gestational surrogacy in Aotearoa New Zealand has not required the intervention of the family court. This is why it is critical and is part of ECART application to have legal reports for both parties. Note there is minimum length of relationship with surrogate required for ECART, which is 6 months.
Once the embryo transfer takes place, all legal rights of the pregenacy is with the surrogate. What does it that mean? The surrogate continue to have autonomy over her body and resulting pregancy. Intending parents does not have any legal rights over pregnancy inluding decisions on care. Building strong relationship with surrogate and her family is so important. You can workout and agree between intending parents, surrogate and surrogate partner, but your lawyer will help you understand the legal framework.
As intending parents, we must go through adoption process once the child is born regardless of genetic link to the child. At birth, the birth mother (BM, i.e. surrogate) and surrogate's partner (if she has one) are the legal parents and are shown on the birth certificate. Surrogate will need to relinquish the parental rights after birth in order for intending parents to take the baby to their home with interim placement order.
There are always those what-if scenarios that we think about and knowing there is no legal protection is stressful. Interestingly the biggest fear for intending parents is the surrogate wishing to keep the baby after birth. The biggest fear for the surrogate is that the intending parents not adopting the baby after birth. Catch-22! All the other what-if scenarios following that are even more absurd to think about but necessary. Including who will become legal guardian or parents if both intending parents die during pregnancy. What will happen if intending parents split up? and everthing in between.
So what are some of the key issues to discuss, below is not exhaustive list?
- Surrogacy arrangements (verbal or written) are not legally enforceable and disputes will be determined by the courts.
- Birth mother (surrogate) and her partner (if she has one) will be the legal parents of the child until formal adoption by intending parents.
- Intending parents names will not be on the first birth certificate for the child
- Legal decision on termination of the pregnancy is soley with the surrogate.
- HART Act 2004 criminalises payments for surrogacy arrangements and subject to imprisonment of up to 1 year and/or up to $100,000 in fine.
ECART process can be lenghty but with current legal framework it helps everyone invovled to understand legal issues that may arise and make informed decisions. Legal system is long overdue for an update to keep up with the time. We look forward to future when intending parents' and surrogates' experience will become clearer and easier with Improving Arrangements for Surrogacy Bill.
Resources
- ECART The Ethics Committee on Assisted Reproductive Technology (ECART). You can find official information along with previous ECART meeting minutes.
- Human Assisted Reproductive Technology Act 2o04
- Adoption Act 1955