Input to Reem Alsalem

Thank you for the opportunity to provide input into the thematic report to the General Assembly 80th Session on Surrogacy and Violence Against Women and Girls.

The Women’s Rights Party of New Zealand is a registered political party that promotes the sex-based rights of women and girls in New Zealand.¹ The health and well-being of women and their children is a high priority for our members.

Our Policy Platform spells out our position in relation to surrogacy.² We oppose commercial surrogacy arrangements due to the potential for exploitation of women and we agree that commercialisation of surrogacy should remain illegal in 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, a subsidiary of the international organisation.

In line with the Women’s Declaration International, we reaffirm motherhood as an exclusively female status.

The Women’s Declaration International promotes the sex-based rights of women and girls in accordance with the principles of the Convention on the Elimination of All forms of Discrimination Against Women.³

WDI reaffirms women’s and girls’ rights to physical and reproductive integrity, and opposes their exploitation through surrogacy and related practices.⁴ Reproductive autonomy includes a woman’s right to autonomy over her pregnancy and childbirth.

Both organisations stand against all forms of violence against women and girls.

Both organisations 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.

Our input is focused on the situation in New Zealand where the Government is currently considering a redrafted Bill to liberalise surrogacy. We cover the following:

1. The current process in New Zealand
2. The New Zealand process for international surrogacy, and our concerns
3. What the original Improving Arrangements for Surrogacy Bill proposed and why we opposed it
4. The redrafted Bill and our position on proposed changes
5. Summary

The stated aim of the proposed legislation is to streamline and better regulate the surrogacy process in New Zealand. Currently when a baby is born to a surrogate mother, either in 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 New Zealand, but currently these arrangements are not legally enforceable. 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 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. 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.

At the time of birth, the child’s legal parents are the surrogate 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.

As with formal adoptions, intending parents have to be approved 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 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 New Zealand. However, a surrogate mother can be reimbursed for reasonable pregnancy-related expenses, such as antenatal classes or ultrasounds.

International surrogacy 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.⁵

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.

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 in 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. In the process of transferring legal parenthood to intending New Zealand parents, New Zealand child welfare authorities need to assess their suitability as adoptive applicants, and documents obtained overseas must meet the requirements of the Adoption Act 1955.⁶

The purpose of the original 2022 Improving Arrangements for Surrogacy Bill in the name of Tamati Coffey MP⁷ and subsequently adopted as a Government Bill by the then Labour Government, 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 original 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 the original 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 a woman became pregnant as a result of a surrogacy arrangement, and 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 as 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.⁸

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 Bill fell short of this expectation.

In relation to the Child Support Act, the intending parents under the original 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).

The original Bill was referred to the New Zealand Law Commission which made several recommendations that have been picked up in a redrafted Bill, now before Parliament.⁹

The Law Commission described surrogacy positively as a unique method of building a family,¹⁰ even though it involves 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), should be taken into account to avoid discrimination and exploitation.

We are concerned that women who enter into surrogacy arrangements, convincing themselves that they would merely be carriers, may eventually find themselves traumatised and devastated by having to give the baby up.

For example, we agree that surrogate-born children should have the opportunity to learn about their genetic and gestational origins and whakapapa (family history), and that there needs to be a trigger to allow them to access that information in the future.

Commercialisation of surrogacy is technically illegal in New Zealand. However, 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.

It is our view that the surrogacy industry in New Zealand should be better 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.

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 State-owned television. 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 as insurance for their future potential child. 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 agree with carrying over the existing offence of obtaining ovum or eggs from a young person under 16 years of age, though we urged Parliament, in the interest of clarity, to use plain language – this restriction is about harvesting and freezing eggs of underage girls.

The redrafted Bill requires a social worker’s report to be provided before determining an application for approval of a surrogacy arrangement. The purpose is to assess whether the intended parents pose a risk of serious harm to a child born of a surrogacy arrangement.

The Bill also provides for an ethics committee which will have the power to cancel approval for a surrogacy arrangement if there is a breach of the approval or if the ethics committee becomes aware that the assisted reproduction procedure poses a serious risk to human health and safety. We support measures to protect the health and safety of the surrogate mother.

We support the intent of these two measures but doubt whether they would be sufficient to prevent abuses.

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 extended families.

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 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.

We support changes in the revised Bill that now mean the birth 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.

The suggested period of seven days proposed in the Bill was far too short a timeframe for the birth mother to make such a serious decision. Dog breeders do not allow puppies to be picked up by the new owners until eight weeks after the birth, and so a minimum of at least six weeks after the birth for any transfer of parental rights of a human baby does not seem to be unreasonable.

In the redrafted Bill, the birth mother of a surrogate-born child is proposed to be the sole parent of the child and its guardian until the parental rights have been transferred. We support this change to the original Bill as being consistent with our commitment to women’s autonomy during pregnancy and birth.

It was proposed that the intended parents may be additional guardians until parentage had been transferred to them. We did not support this.

We expressed concern about recognition of certain overseas parentage determinations. We are not convinced that transfer of parentage in the case of overseas surrogacy is robust enough to prevent international trafficking.

1. We do not agree that the proposed surrogacy arrangements can eliminate the coercive element inherent in the practice of surrogacy. Even in New Zealand where commercial surrogacy is against the law, we have a situation where those with means can essentially ‘buy’ a baby to be carried and birthed by women who have become a commodity in a profit-driven transaction.
2. We are concerned that 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.
3. It is our view that surrogacy arrangements, whether commercial or altruistic, can never be free of exploitation of women’s reproductive capacities.
4. We do not agree that having a baby via surrogacy is a human right. There is no societal duty to provide babies to those who cannot have their own children.
5. We have concerns about gay male couples or single males being able to commission a surrogacy arrangement, particularly when they are in their 50s or 60s. In whose interests would this serve – the parents’ or the child’s?
6. We called for a ban on international surrogacy by New Zealand citizens seeking to ‘rent a womb’ in countries where there is commercial surrogacy, thereby seeking to circumvent New Zealand’s ban on commercial surrogacy.