The Improving Arrangements for Surrogacy Bill currently being considered by the Health Select Committee needs to be withdrawn, and for the Government to produce a bill that represents and deals with the issues raised by the Law Commission, and then to resubmit it and allow public submissions to a select committee.
Family First made an oral submission to the Select Committee today and the call is based on legal advice that we received from a leading public law expert which compared the bill (introduced 23 May 2021) with the advice from the Law Commission review (published 29 April 2022).
The Bill fails to address a number of key recommendations made by the Law Commission. The most notable omissions of the Bill are:
- a failure to set out how the welfare and best interests of the child are to be considered when gaining ethics approval and determining legal parenthood of the child;
- the detail of what reasonable costs can be compensated under surrogacy arrangements;
- the rights of surrogate-born people to access information about their surrogate parent; and
- how the Ethics Committee on Assisted Reproductive Technology (ECART) should be modified to carry out new functions related to surrogacy arrangements.
Because the Bill is less prescriptive than the Law Commission about what constitutes reasonable expenses, there is arguably greater scope for the unintended commercialisation of surrogacy arrangements.
The Bill is focused on making surrogacy more accessible for the benefit of the intending parents, whereas the Law Commission Review more roundly considers the interests of all parties, including the child, surrogate and intending parents.
The Law Commission Review recommends an amendment to the HART Act to add the principle that surrogate-born people should have a right to know their genetics, whakapapa, gestational origins and to access that information. The Bill doesn’t require the notification of the surrogate or donor’s name, but only their address, whether they are a descendant of a New Zealand Māori, their ethnicity, their citizenship or residency status, their date, place and country of birth and type of cells donated. Accordingly, the Law Commission Review accords surrogate-born children greater rights of access to information about surrogacy arrangements than the Bill.
The Law Commission recommends that the Family Court must be satisfied that making a parentage order is in the best interests of the child, which should be determined with regard to factors including:
- the child’s genetic and gestational links to each of the parties to the surrogacy arrangement;
- all sibling relationships of the child;
- the arrangements in place for preserving the child’s identity, including information about their genetic and gestational origins and whakapapa;
- any arrangements in place to enable the child’s relationships with other people involved in the creation of the child and their family groups, whānau, hapū and iwi;
Both the Law Commission Review and the Bill provide for increased accessibility of surrogacy but do so in very different ways. The Law Commission recommends that the Government publish information to help parties understand the laws relating to surrogacy better, while the Bill creates a Surrogacy Register for the purpose of matching potential surrogates with intended parents.
The Law Commission also recommends the Government should commission research on Tikanga Māori and surrogacy and Māori perspectives on surrogacy in practice,79 and recommends that ECART receive further guidance to help determine whether counselling in relation to a surrogacy arrangement is culturally appropriate from an ao Māori perspective. The Bill does not specifically account for Tikanga Māori or Te Ao Māori perspectives on surrogacy, and it does not appear to have been informed by any research on such.
We call for this bill to be withdrawn, and for the Government to produce a bill that represents and deals with all the issues raised by the Law Commission, and then to resubmit it and allow public submissions to a select committee.
It is important to note that Family First opposes surrogacy because it is not in the best interests of the child. Surrogacy, even when done altruistically, objectifies children and surrogate mothers and creates lifelong emotional issues for both. Surrogate mothers are at increased risk for emotional trauma and psychological burden. The process leads to the commodification of children.
READ Family First’s submission to the Select Committee
READ Family First’s submission to the Law Commission