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New Zealand should join the UK and Australia in considering law reform around child surrogacy arrangements, a Law Foundation-backed study finds.

Changing social and scientific conditions are rendering child surrogacy law increasingly outdated, forcing judges to “creatively interpret” existing law, according to a major three year University of Canterbury research project funded by the New Zealand Law Foundation.

Dr Debra Wilson

Project team leader Dr Debra Wilson says the “Baby Gammy” case was an example of the complex situations not envisaged in current legislation. The case involved the Thai surrogate mother of a child with Down syndrome, initially reported to have been abandoned by his Australian intended parents, unsuccessfully seeking custody of the other twin when it was discovered that the intended father was a convicted child sex offender.

“It used to be that a child came from two people. Now there are potentially multiple people with a legal claim to being involved in bringing a child into the world,” she says.

Under New Zealand law, a surrogate mother and her partner are considered the legal parents of a child – the only way the intended parents can become legal parents is through adoption. This becomes more complicated if the birth takes place overseas, where relevant law may be different from ours.

Dr Wilson says the issues in international surrogacy are numerous, complicated and not completely understood. The inadequate law was leading to intended parents not having their relationships to their children legally recognised, which may create issues for the child.

She says New Zealand should reform its surrogacy laws, in line with moves in Australia, where a model national law on surrogacy has been mooted, and in the UK, where the Law Commission has proposed adding surrogacy to its work programme.

Dr Wilson is leading an eight-person multi-disciplinary research team, and the team is currently surveying lawyers in New Zealand on their experiences with advising clients on surrogacy arrangements.

The initial scoping phase of the project (also funded by the Foundation) found that inadequate law was leading to parents’ relationships with their children not being legally recognised. The Foundation is now funding phase two of this three year study, which will ultimately produce options for law reform and a model surrogacy law. For enquiries about the research, Dr Wilson can be contacted on debra.wilson@canterbury.ac.nz

Law Foundation has awarded $104,000 towards phase two of this project