However, the Women’s Rights Party and the Women’s Declaration International, to which we are a signatory, support women’s and girls’ rights to physical and reproductive integrity. We therefore oppose women’s exploitation through surrogacy and related practices. Reproductive integrity includes a woman’s right to autonomy over her pregnancy and childbirth.

We question whether having a child as a “human right” implies a societal duty to provide babies to those who cannot have their own children? What of the child’s human rights? What safeguards are there to ensure children are not being commissioned by paedophiles? Is it ethical to commission a baby with the deliberate intention of bringing up a child without his or her mother?

Thank you for the opportunity to make a submission on the revised Improving Arrangements for Surrogacy Bill on behalf of the Women’s Rights Party of Aotearoa New Zealand and WDI New Zealand.

The Women’s Rights Party is a registered political party focused on issues that directly impact women, girls, and children. We have around 800 members and contested the 2023 General Election with a List of 12 exceptional women from different parts of the country with varying qualifications and experience. The health and well-being of women and their children is a very high priority for our members.

Our Policy Platform spells out our position in relation to surrogacy.¹ We oppose commercial surrogacy arrangements due to the potential for exploitation of women and we agree that commercialisation of surrogacy should remain illegal in Aotearoa New Zealand. We have also opposed any proposed changes to legislation which would remove the birth mother as the first legal parent in the case of surrogacy.

The Women’s Rights Party is a signatory to the Women’s Declaration International, (WDI) and this submission is also made on behalf of WDI New Zealand.² In line with the Women’s Declaration International, we reaffirm motherhood as an exclusive female status.

WDI New Zealand reaffirms women’s and girls’ rights to physical and reproductive integrity and opposes their exploitation through surrogacy and related practices. Reproductive integrity includes a woman’s right to autonomy over her pregnancy and childbirth.

Both the WDI and the Women’s Rights Party are opposed to international surrogacy whereby “commissioning” parents sidestep their country’s ban on commercial surrogacy by “renting a womb” in a country that allows commercial surrogacy.

By “biological child”, in the case of surrogacy, we mean a child whose DNA is derived from at least one of the intending parents.

We question whether having a child as a “human right” implies a societal duty to provide babies to those who cannot have their own children? What of the child’s human rights? What safeguards are there to ensure children are not being commissioned by paedophiles? Is it ethical to commission a baby with the deliberate intention of bringing up a child without his or her mother?\

1. The current process (based on adoption after the baby’s birth)
2. What the original Tamati Coffey Bill proposed and why we opposed it
3. Concerns about international surrogacy
4. The revised Bill in relation to regulation of surrogacy services
5. The proposed process of transferring parentage from the birth mother to the intending parents.
6. Summary, including questions we think you should have asked

We understand that the aim of the proposed legislation is to streamline and better regulate the surrogacy process in Aotearoa New Zealand. Currently when a baby is born to a surrogate mother, either in Aotearoa New Zealand or overseas, the intending parents must apply to adopt the baby after the birth in order to become the baby’s legal parents.

Surrogacy arrangements are legal in Aotearoa New Zealand, but currently these arrangements are not legally enforceable. In other words, it is not against the law to have such arrangements, but a person cannot go to the courts to get the Courts to enforce whatever was decided by the people involved when they made the arrangement.

The surrogate mother is automatically the legal parent or caregiver of the child she is carrying. The intending parents have no legal rights to the child, before or after the birth, unless they adopt the child. Even if there is an agreement with a surrogate mother for intending parents to adopt the child after birth, a surrogate mother who wants to cancel or change the arrangement and raise the child herself can do that under our current legislation. As of now a surrogate mother cannot be forced to give up the child, even if the baby’s conception involved donations of sperm or eggs from one or both of the intending parents.

We understand the interests of the intending parents in protecting their legal status, but at the same time we are strongly in favour of placing the rights of the surrogate mother and the surrogate-born child as the prime concern of the law.

At the time of birth, the child’s legal parents are the surrogate birth mother and her partner, if she has one. To be a legal parent, her partner must have consented to the surrogacy arrangement. Intending parents need to apply to adopt the child through the Family Court, a process that transfers parental rights from the surrogate mother and, if necessary, her partner, to the intending parents.

In the case of a surrogacy arrangement, after the baby is born, an application for the adoption is lodged with the Family Court. The consent of the birth mother, and if necessary, her partner, is required before the application can be lodged.

As with formal adoptions, intending parents have to be approved by Oranga Tamariki as suitable adoptive parents to the child. A social worker assessment using set criteria incorporates references, a check of police records and a check of the Oranga Tamariki child protection database.

The Family Court judge decides whether the adoption is in the best interests of the child. If an adoption order is granted, a new birth certificate will be issued in the names of the intending parents.

Commercial surrogacy is illegal in Aotearoa New Zealand. However, a surrogate mother can be reimbursed for reasonable pregnancy-related expenses, such as antenatal classes or ultrasounds.

Under the Parental Leave and Employment Protection Act 2016 (PLEP Act),⁴ a surrogate mother, as the biological mother who is pregnant or has given birth to a child,⁵ has entitlement to parental leave if she meets the eligibility requirements, for example, in relation to length of service with her employer.

However, her entitlement only lasts until someone else, in the case of surrogacy the intending parents, take permanent, primary responsibility for the care, development, and upbringing of the child (see PLEP Act section 7(1)(c)). This is important as surrogate mothers experience pregnancy and childbirth, which require a period of recovery, especially when there are complications with the pregnancy, birth, or post-natal period.

The proposed Bill does not mention entitlement to statutory parental leave, instead proposing that the intended parents can reimburse the surrogate mother for costs relating to lost wages or salary. However, this could disadvantage her both in relation to entitlements to which she is currently eligible under the PLEP Act and/or her individual or collective employment provisions.

International surrogacy, both commercial and altruistic, is a complex and evolving area which raises significant ethical, legal and social issues. The birth of a baby to a surrogate mother in one country, where the intending, and often genetic, parents are from another country, involves enormous legal complexities.⁶

For example, in the United Kingdom where commercial surrogacy is illegal (as it is in New Zealand), surrogacy brokering services connect so-called “commissioning parents” with potential surrogates in countries where commercial surrogacy is legal.

In addition to this, surrogate mothers often live in countries where there are weak regulations and laws around surrogacy, and poor health standards. This increases the risk of humanitarian problems — where the surrogate mother and child may be vulnerable, and their rights not well-protected.

Journalist and author Julie Bindel says that the surrogacy industry, which is built on the commodification of the female body, can never be truly free of exploitation.⁷

There have also been cases documented by Australian TV’s Foreign Correspondent⁸ where babies born with major health problems such as brain damage have been left abandoned by the ‘commissioning parents’ in the children’s home country where the social services and health system are ill-equipped to care for them.

Under current New Zealand law, the legal parents of those babies born through an international surrogacy arrangement are the surrogate mother and her partner. To become the legal parents, the intending parents need to apply to adopt the child n the New Zealand Family Court.

Children born through international surrogacy do not meet the requirements of New Zealand citizenship by descent. Even if there is a genetic link between one or both of the intending parents and the child, the child will, in most cases, have only temporary immigration status in New Zealand and will not be entitled to New Zealand citizenship or a New Zealand passport. The decision to grant a temporary visitors’ visa is made by the Minister of Immigration using a set of non-binding guidelines.

The child does not have an automatic right to enter New Zealand unless the baby’s surrogate mother does. Further, until the child is formally adopted, he or she will not have inheritance rights in relation to the intending parents.

In the process of transferring legal parenthood to intending New Zealand parents, Oranga Tamariki assesses their suitability as adoptive applicants, and documents obtained overseas must meet the requirements of the Adoption Act 1955.⁹

Some countries have banned commercial surrogacy. These include Thailand, Nepal, India and Cambodia. The New Zealand Government strongly recommends that New Zealanders do not engage with surrogacy services in Ukraine whilst we have a “do not travel” advisory in place.

The purpose of the original 2022 Bill in the name of Tamati Coffey MP¹⁰ and subsequently adopted as a Government Bill by the then Labour Government the following year, was to “simplify surrogacy arrangements, ensure completeness of information recorded on birth certificates, and provide a mechanism for the enforcement of surrogacy arrangements”.

As noted above, New Zealand law does not currently afford any automatic rights to the intending parents of a child born via surrogacy. At the time of birth, the child’s legal parents are the surrogate mother and partner, and a formal adoption process is required to complete the arrangement.

By contrast with the current adoption process, the Coffey Bill would have provided the intending parents with automatic legal status at the point that custody of the child was transferred, which could be at the birth. The intending parents would, for every purpose, be the parents of any child of the pregnancy and have all the rights and liabilities of parents of the child.

This is because Coffey’s Bill allowed for some or all of the parties to a surrogacy arrangement to apply to the Court to make a surrogacy order determining that the custody of any child resulting from a pregnancy under the surrogacy arrangement must transfer from the surrogate to the intending parents within ten days of the birth of the child.

The Court order would contain obligations and consequences for non-compliance. If (1) a woman became pregnant as a result of a surrogacy arrangement, and (2) the surrogacy arrangement was the subject of a surrogacy order made under the Care of Children Act 2004; and (3) which the pregnancy resulted in the birth of a living child, then from the birth of the child, the surrogate mother and her partner would not, for any purpose, be considered parents of any child of the pregnancy and would no longer have the rights and liabilities of parents of the child.

The United Nations Convention on the Rights of the Child (UNCROC), ratified by New Zealand in 1993, committed New Zealand to implementing the rights set out in the Convention.¹¹

In the preamble. the UN proclaims that children are entitled to special care and assistance, including appropriate legal protection, both before as well as after birth. The family is recognised as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, and therefore families should be afforded the necessary protection and assistance so they can fully assume their responsibilities within the community.

Article 3 states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. We believe the original Coffey Bill fell short of this expectation.

One redeeming feature of the original Coffey Bill (which is also in the revised Bill) was acknowledgement of a child’s right to seek and receive information of all kinds (in line with Article 13(1)). The Coffey Bill required the Registrar of Births, Deaths, Marriages and Relationships to also register information about the identity of the surrogate mother and any person who donated an embryo or cells for the pregnancy. This information would be held as restricted information. In this way, as with the revised Bill now under consideration, the rights of children to know their genetic origins was, and has been, recognised.

However, the following two provisions of the original Bill have been deleted in the revised legislation, i.e. Part 4: Amendments to the Child Support Act 1991, and Part 7: Amendments to Social Security (Exemptions under Section 105) Regulations 1998.

In relation to the Child Support Act, the intending parents under the original Coffey Bill would become liable for child support if they refused to take custody of the child (for example, if the child had a disability or was of the “wrong” sex).

In relation to the proposed amendments to the Social Security Regulations, surrogate mothers who are beneficiaries would have been exempt from work- testing requirements if they were more than 27 weeks pregnant or they were more than 27 weeks pregnant or they were suffering complications arising from the pregnancy.

Surrogacy has been described positively as a unique method of building a family by the Law Commission¹², but it does involve complex ethical, medical and safety issues for the woman who is a surrogate mother, as well as the child in the future.

Surrogacy arrangements raise ethical issues for women related to reproductive freedom, health and well-being. As it is, the autonomy and rights of women who are undertaking pregnancies and birthing for surrogacy purposes (and potentially undertaking risk in some situations), need to be taken into account to avoid discrimination and exploitation, as has been reported internationally.

As Bindel says: “Women are conditioned to be ‘nice’ and to sacrifice ourselves for others. Pregnancy is a major endeavour, and surrogacy can cause complications and carries health risks. Why do so many believe that it is a ‘right’ for anyone to have their own biological child at the expense of the women who bear that child?”

Bindel goes on to say there is never much consideration for how a surrogate mother (either financially motivated or volunteer) may feel when the time comes for her to hand over the baby she has carried for nine months and has just birthed.

The health and well-being of children born as a result of a surrogacy arrangement is to be included as an important consideration of all decisions about any surrogacy arrangement.

Changes to Part 1: Amendments to the Human Assisted Reproductive Technology Act 2004 set out processes for the approval and information-keeping regime in relation to surrogacy arrangements made through a surrogacy or fertility service.

We agree that surrogate-born children should have the opportunity to learn about their genetic and gestational origins and whakapapa, and that there needs to be a trigger to allow them to access that information in the future. Where appropriate and available, information relating to the birth mother’s and donors’ hapu and iwi should be collected as part of the ethnicity and cultural affiliations that may become
important to the child in future years. (See Question 5)

Commercialisation of surrogacy is technically illegal in New Zealand. However, it should be noted that the involvement of fertility services in surrogacy services through assisted reproductive technology is a commercial activity that someone has to pay for, be it the intending parents or the surrogate mother, who is to reimbursed her costs.

We note that new section 23B carries over the previous provision that while a surrogacy arrangement is not illegal, it is not enforceable, although there is a new proviso that an arrangement to pay or reimburse surrogacy costs is legally enforceable.

It seems to us that the surrogacy industry in New Zealand should be strongly regulated. The parties involved in a surrogacy arrangement should be fully informed and any arrangement entered into before conception must protect the interests of the surrogate mother and any child born as a result, as well as the intending parents.

We are concerned that, although commercial surrogacy is illegal in New Zealand, fertility services that provide surrogacy services are a booming industry here as we see from advertisements on TVNZ. Someone has to pay for these privately provided services, which will not be cheap. Ultimately it will be those with the means to pay who are exploiting those without, i.e. the surrogate mothers.

Fertility services also make a handsome profit out of harvesting eggs and freezing embryos. Women undergoing chemotherapy or other treatments that can harm their fertility may undergo the process in anticipation of a future potential child or children. Egg harvesting is also promoted by fertility services as a “new era for equality and career progression for women” – providing protection against their biological clock running out. We do not support ‘social harvesting”.

We agree with carrying over the existing offence of obtaining a gamete from a young person under 16 years of age in new section 12. Presumably because the wording refers to a singular gamete, we are talking about ovum or eggs, and therefore girls. In the interest of clarity about the intent of the section, we suggest the use of plain language – the restriction in new section 12 is about harvesting and freezing eggs of underage girls.

The Bill establishes a defence that defendants must prove that they obtained the gamete (ova or egg) for the purpose of preserving it and that appropriate consent was given to the procedure (bearing in mind that children under 16 cannot give appropriate consent and that this would need to be given by the girls’ parents).

The section also carries over the existing offence of using a gamete that was obtained from an individual who is under 16 years of age, but broadens the defence to allow the gamete (ova or egg) to be used for a lawful purpose with the consent of the individual after the individual turns 16 years of age.

We agree with new section 23E providing for surrogacy arrangements through a fertility service to require approval by the ethics committee with further requirements that prior written approval is to be a pre-requisite for any assisted reproductive procedure, though we query why this is optional for “established
procedures”. At this point in the development of assisted reproductive technology, is it not the case that all such procedures are now well established? We do, however, support the proposed fine of up to $50,000 for providers that fail to obtain the necessary consents.

A social worker’s report is to be provided under new section 23H before determining an application for approval of a surrogacy arrangement. This will occur well before the social worker’s report on the suitability of intended parents under the current adoption process before the Family Court. The purpose is to assess whether the intended parents pose a risk of serious harm to a child born of a surrogacy arrangement. We agree that the earlier this checking is done, the better.

The ethics committee will also have the power to cancel approval for a surrogacy arrangement under new section 23K if there is a breach of the approval or the ethics committee becomes aware that the assisted reproduction procedure poses a serious risk to human health and safety.

We recognise that it is not uncommon for traditional ‘altruistic’ arrangements, involving birth mothers carrying a baby for another mother who has been unable to conceive or carry her own, often within close families. Currently ethics committee approval is not required where the two women are sisters or cousins.

The concept of ‘whāngai’ is relatively common in Māori and Pacific cultures where a child is raised by someone other than his or her birth parents, usually by someone from the extended family. Such arrangements can be very successful for the birth mother, the child, and the parents who are raising the child, especially where there is continuing contact with the birth mother and transparency about the arrangements.

However, as Bindel reports, she has met many women who have been severely traumatised by their experience as surrogate mothers. “Unfortunately, we rarely hear from them. The surrogacy industry and its many supporters focus their attention on the feelings and desires of ‘commissioning parents’, and fail to pay any attention to the suffering of the women who make it all possible.”

She points out that people who defend surrogacy say everyone has a “right” to parenthood. “They ask, how can gay men have biological children if not through surrogacy? Wouldn’t it be homophobic to take this opportunity away from them?

Also, what about women who cannot carry a pregnancy to term for whatever reason, should they never experience motherhood?”

Bindel points out that: “Nobody has the right to a biological child, regardless of their sexuality or sex. The use of impoverished women’s bodies for the benefit and convenience of those claiming parenthood as ‘their human right’ is anathema to women’s liberation.”

We support changes in the revised Bill that now mean the surrogate mother provides final consent to transfer parental rights after she has given birth, regardless of any surrogacy arrangement made before conception or during the pregnancy. This is consistent with our point relating to women’s autonomy during pregnancy and birth. The birth mother should make decisions in relation to her health and well-
being.

It appears that the usual transfer process under the revised Bill would be by “operation of law”, when (1) the surrogacy arrangement has been approved by the ethics committee, (2) the child is in the care of the intended parents, and (3) the birth mother has made a statutory declaration before a lawyer in accordance with new section 42. The transfer of parenthood by operation of law is simply recorded in a court order.

A statutory declaration may not be necessary if the new law maintains adoption as the way to transfer parentage. In this case, the new clauses about statutory declarations may not be necessary. However, if the new law contains provisions for a statutory declaration to transfer parentage, we think that this declaration should not be made sooner than two weeks after the birth, rather than the proposed wording in new section 42, i.e. no sooner than seven days following the birth.

We suggest the following wording:

“If a birth mother makes a statutory declaration agreeing to transfer parentage, then this shall not be made sooner than two weeks after the birth.”

New section 30 amending the Status of Children Act 1969 provides for the birth mother of a surrogate-born child as the sole parent of the child until the parental rights has been transferred, a declaration of parentage has been made in respect of the child, or there is an adoption order in respect of the child. This is to be the case even when the surrogate mother had a partner at the time the baby was conceived, during the pregnancy, or at the time the child was born.

The birth mother of a surrogate-born child is also to be the sole guardian of the baby with the same conditions as above, although where there has been an ethics committee-approved arrangement, it is proposed that the intended parents may be additional guardians until parentage has been transferred to them. See new section 31.

We do not think that the process of a mother, having given her consent after this time period, should replace the need for the intending parents to adopt the child as in the current law. The birth mother can sign the adoption papers, just as she could sign the statutory declaration in which case a statutory declaration would not be necessary.

It is proposed that the Family Court, in new section 53, can make a parentage order by application of one or more of the intended parents or the birth mother and only if the Judge is satisfied the Court is the most appropriate forum in the interests of the child (new sections 46 and 47). If the Court has concerns for the safety or well- being of the surrogate-born child, a lawyer may be appointed to represent the child’s interests. Would not this happen anyway under our child protection laws?

We note that, where the Court is involved, it is proposed that one or more additional guardians may be appointed (new section 32). The Court can also remove one or more of the intended parents as guardians if the Court is satisfied the removal will serve the best interests of the child (new section 33).

We are concerned that new section 66 provides for recognition of certain overseas parentage determinations. These are to be recognised in New Zealand with the same effect as transfers of parentage by operation of law or by a parentage order in New Zealand.

We have incorporated our responses to your questions into the body of our submission. For example, in response to Question 5, we support inclusion of information relating to hapu and iwi where appropriate.

With regards Question 8, we have also made suggestions to improve surrogate mothers’ entitlement to parental leave of at least six weeks, to reinstate child support provisions from the original Bill, and to reinstate provisions around work-testing for beneficiaries, also from the original Bill.

With all due respect, we could not see the point many of your questions. We do not think you have asked the right questions. Here are our suggestions…

1. Can surrogacy arrangements, whether commercial or altruistic, ever be free of exploitation of women’s reproductive capacities?
2. Can we eliminate the coercive element inherent in the practice of surrogacy? Even in New Zealand where commercial surrogacy is against the law, do we have a situation where those with means can essentially “buy” a baby to be carried and birthed by women who become a commodity in a profit-driven transaction?
3. Do modern reproductive technology practices used in surrogacy arrangements, such as embryo and egg transfer, create so much risk of harm to donor and recipient that legally permitting them to continue cannot be justified?
4. Should traditional, altruistic surrogacy arrangements be less restrictive than those involving for-profit surrogacy services, especially in intra-familial situations?
5. Is having a baby via surrogacy really a human right? Does this imply a societal duty to provide babies to those who cannot have their own children? What safeguards are there to ensure children are not commissioned by paedophiles?
6. Should couples or a single parent be able to commission a surrogacy arrangement when they are in their 50s or 60s? In whose interests would this serve – the parents’ or the child’s?
7. Should we ban international surrogacy by New Zealand citizens seeking to “rent a womb” in countries where there is commercial surrogacy, regulations are weak, maternal health services are poor, and social services are ill equipped to cope when things go wrong with the children?
8. Could growing new life in your womb, birthing that life with great risk to your own well-being, and then handing a baby over to the person who commissioned it, ever be considered just another type of “work”?

We leave the last word to Bindel: