Open letter to the NZ Government

8 June 2020

To the Members of Parliament,

Re: Simplify Surrogacy Arrangements and update the NZ Adoption Act

Thank you for the opportunity to submit in relation to our petition to “Update the NZ Adoption Act to simplify and speed up the process for Adoption” which has received almost 35,000 signatures to date.

As parents of our beautiful son Frankie, who was brought into this world through surrogacy, this is a topic that is dear to our hearts and one we wish to advocate positive change for other hopeful Kiwi parents.

In addition, we would like to see Surrogacy laws be reviewed and new laws created to protect the “intending” parents’ right, reduce the need for a formal adoption and allow for compensation for surrogates, as well as the right to arrange surrogacy agreements within New Zealand.

Surrogacy Agreements

  • Compensation & Arrangements

S 13 and 14 of the HART Act 2004 state that it is an offence to give or receive “valuable consideration” for the supply of a human embryo or human gamete, or for participation in a surrogacy arrangement, that does not include payments for the actual and reasonable expenses incurred in doing those things.

We would like to see the restrictions around compensation for surrogates lifted and for the arrangement of surrogacy agreements to be allowed by third parties, currently an offence under S14 (3) of the HART Act 2004.

At present, allowable reimbursable costs associated with being a surrogate do not cover the likes of lost wages and child care, food and other essentials. We would like to see compensation opened up to cover more than just expenses directly associated with surrogacy.

  • Enforcing Surrogacy Agreements

We believe that as part of the ETHICS process, any agreement that has been reached should be enforceable. Therefore once the child is born, the intending parents have full legal rights over the child, and the birth mother relinquishes her rights as agreed during the surrogacy arrangements. This would result in removing the need for adoption, and the child’s parents can be listed on the birth certificate from the date of birth.

At present, current law states that the birth mother is required to stay with the child for 12 days after the birth to form an attachment. And only after day 12 is the birth mother allowed to relinquish their rights and agree to adopt the child.

From day 12 onwards, the intending parents can submit a letter to Oranga Tamariki and request that the child be taken home with the intending parents as sole carers. This approval must be granted by Oranga Tamiriki before they proceed home with the child.

Presently under the current law, there is no enforcement of the surrogacy agreement once the baby is born. What this means, is that the birth mother has full rights under law to keep the child as her own. I would like to see surrogacy agreements upheld as agreed prior to the birth of the child and enforced in a court of law.

There are no laws around child support where intending parents change their mind after the legal termination date, and refuse to take custody of the child once born. In contrast to the above, if an intending parent can no longer take care of the child, there must be mechanisms in place by way of outside adoption and enforcing their legal obligations by making them liable for child support and compensation for the birth mother and child in future.

  • Child’s right to know genetic origins

I believe it is a child’s right to know who their parents are (birth and biological) to recognise the rights of children to know their genetic origins. Therefore I would like to see the option for parents to choose to have multiple names on the child’s birth certificate, as well as a register of this information should the child ever wish to identify their history.

Formal Adoption Process

The law states that when the child is born, the birth mother is the legal parent. If the birth mother has a partner, it is the two of them that would be listed on the birth certificate, even if the child is not biologically related to them, in cases such as gestational surrogacy.

At present, NZ law does not allow the biological parent(s) of a child born via surrogacy to be the legal parents at birth. The ‘intending parents’ are required to go through a lengthy and expensive formal adoption process, in order to have their names listed on their own child’s birth certificate.

In our case, the quote to complete the adoption from a well known QC in NZ who manages most of NZ’s adoption applications, was close to $10,000. This unnecessarily burdensome and expensive process means adoption is out of reach for many New Zealanders and this simply should not be the case.

Simplify The Adoption Process

The fact that any adoption in NZ requires legal representation at the cost of $10k (for a straightforward Surrogacy case), puts a huge financial strain on intending parents when that money could otherwise be spent on the wellbeing and upbringing of a child.

The fact that legal representation is required is due to a number of inhibiting factors such as:

  • Extremely difficult to find adoption information including processes, forms and applications
  • The court staff are unaware of what is required and lack training and knowledge to assist including witnessing and signing of documents
  • There are very few lawyers in NZ that understand what is required, meaning the main QC who specialises in adoption law can charge extortionate fees.

The adoption process needs to be much simpler, clearer, and any lay person needs to be able to complete the process themselves without the need for an expensive lawyer. The staff within the courts need training right across the country to assist intending parents and birth parents, as Oranga Tamariki should have resources available to them, in order to be able to advise and assist with such a process.

We realise there are certain circumstances where this process needs to be rigid, however I don’t believe surrogacy is one of these and I do believe the Act needs to be reviewed in full as it is now 65 years old.

In addition to the above, Section 4(2) of the Adoption Act states that a single male cannot adopt a female child, unless the court believes the man is the child’s father or there are special circumstances. I believe this to be discrimination and pressumes it inappropriate for single men to parent a female child. This is outdated, offensive, and should be removed.

Life in terms of opportunities, technology, and social norms have progressed substantially and the time has come for the Act to reflect this.

International Adoption

  1. Currently there are no agreements in place with any other country that allow same sex couples to adopt and bring the adopted child to New Zealand to live. Therefore, the only option same sex couples have in New Zealand, is to adopt domestically (or go through the surrogacy process).
  1. For New Zealand citizens living overseas, we are the only country (that we know of) that discriminates against location when adopting, and does not allow our citizens abroad to adopt through the domestic process of that country. New Zealand requires their citizens to undergo the adoption process through their country of citizenship, rather than their country of residence, unlike most other countries.

Specifically, Section 17 of the New Zealand Adoption Act 1955 means that New Zealand citizens living abroad are unable to adopt foreign children domestically without written approval from the New Zealand government, granting access for the adopted child to gain citizenship and entry rights to New Zealand.

Oranga Tamariki

The current surrogacy process and adoption laws require Oranga Tamariki resources. A resource that is already overwhelmed and under-resourced. The current process requires sign-off from the government to approve the intending parents as fit and capable parents. There is no such requirement for any other intending parent, whether or not they intend on having children or in fact if they are even in a relationship. This is discrimination and it is not fair that those going through an adoption process are discriminated and judged. 

It is not fair that other couples can have a baby without being questioned however intending parents via surrogacy and adoption must have government approval to have a baby.

Applicants are also required to complete a questionnaire which contains a total of 41 invasive (and some seemingly irrelevant) questions, including “Tell us about the most traumatic time in your childhood. List your brothers and sisters in age order and tell us about them, and tell us about your religion”.

I would like to see the preapproval process for surrogacy from Oranga Tamiriki removed. The resources are needed elsewhere and the current process is unequitable.

Same Sex IVF

Public Funding for IVF isn’t explicitly covered for same-sex male couples. However same-sex female couples and even non-resident hetrosexual couples (even those on a working visa for more than 2 years) are eligible for public funding IVF.

As it stands, we see this criteria as discriminatory, and needs to allow the same rights for same-sex male couples to be eligible for publically funded IVF treatments.

Summary

The petition submitted represents the changes we wish to see in regards to surrogacy and adoption laws, which we request be updated as follows:

  • Intending parents’ legal rights are automatically updated at the point the child is born;
  • enforcing the surrogacy agreement to ensure transfer of the child to the intending parents and;
  • enforcing the legal obligations of intending parents if they change their mind and refuse to take custody of the child, by making them liable for child support, even if they do not have custody of the child and;
  • include a child’s right from birth to know their parents (birth and biological) to recognise the rights of children to know their genetic origins and;
  • allowing agreed consideration to be paid to the surrogate and;
  • allowing public advertisements and services for the arrangement of surrogacy and;
  • review the formal adoption process outside surrogacy and reduce the complexity and cost associated with adoption in NZ including upskilling court staff and providing clarity and access to information around the adoption application and process and;
  • create international adoption agreements with other countries to allow same sex adoptions to take place and;
  • review section 17 to allow citizens living abroad to adopt domestically and give rights to their children within NZ as we would any other child of a NZ citizen and;
  • remove the need for Oranga Tamariki to be involved in the surrogacy process. This is discriminatory and a compliance double-up, unnecessarily wasting precious resources for such a vital government department and;
  • update the criteria for public funded IVF in NZ for same sex male couples.

If you would like to discuss these or any other issues relating to surrogacy, adoption, same sex discrimination or otherwise, please contact me directly.

Thank you once again for considering these changes which will impact the lives of thousands of good Kiwis for whom becoming a parent is not as simple as for others, but who deserve the right to be responsible and loving parents nonetheless.

I look forward to speaking with members regarding this submission.

Kind regards,

Christian Newman

Father of Frankie, born via surrogacy 2018

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