Improving Arrangements for Surrogacy Bill

Improving Arrangements for Surrogacy Bill

Member’s Bill

72—1

Explanatory note

General policy statement

This Bill amends five Acts and two sets of Regulations to simplify surrogacy arrangements, ensure completeness of information recorded on birth certificates, and provide a mechanism for the enforcement of surrogacy arrangements.

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. This Bill affirms the intending parents’ automatic legal status at the point that custody of the child is transferred. It also enforces the legal obligations of intending parents if they refuse to take custody by making them liable for child support, even if they do not have custody 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. These include a child’s right from birth to know their parents and to be cared for by them (Article 7.1) and the right to seek and receive information of all kinds (Article 13(1)). This Bill requires the Registrar to also register information about the identity of the surrogate and any person who donated an embryo or cells for the pregnancy. In this way, the Bill recognises the rights of children to know their genetic origins.

Clause by clause analysis

Clause 1 is the title clause.

Clause 2 provides that the Bill comes into force on the day after the date on which it receives the Royal assent.

Part 1Amendments to Human Assisted Reproductive Technology Act 2004

Part 1 confirms that, although surrogacy arrangements generally remain unenforceable, a surrogacy order under section 124C of the Care of Children Act 2004 can be enforced under this Act. The Part amends sections 13 and 14 to make it clear that, although it remains 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. It expands the functions of the ethics committee to providing approval for surrogacy arrangements for the purpose of obtaining a surrogacy order under the Care of Children Act 2004 and sets out the conditions that must be satisfied before that approval may be provided. This new approval of the ethics committee is separate from, and additional to, the ethics committee approval currently required for fertility treatments for a surrogacy arrangement. This new approval is only required if the parties to a surrogacy arrangement wish to apply to the court for a surrogacy order (provided for in Part 2 of this Bill). Finally, the Part provides for the appointment by the Minister of a Surrogacy Registrar. The primary function of the Surrogacy Registrar is to establish a register for the purpose of facilitating surrogacy arrangements by enabling women who are willing to become surrogates to be matched with intending parents.

Part 2Amendments to Care of Children Act 2004

Part 2 provides a mechanism for enforcing certain surrogacy arrangements. First, the parties to a surrogacy arrangement may seek to have the terms of a surrogacy arrangement relating to the transfer of custody of any child resulting from the arrangement embodied in a surrogacy order of the court. The court may make a surrogacy order if it is satisfied that both the parties consent and the ethics committee has provided its approval under the Human Assisted Reproductive Technology Act 2004. If the surrogacy is arranged through an overseas provider of fertility services, the court must be satisfied that an entity in that overseas country that is equivalent to the ethics committee has provided written notice that each of the requirements required for ethics committee approval have been met. Second, a surrogacy order may then be enforced under the Care of Children Act 2004 as if it were a parenting order.

Part 3Amendments to Status of Children Act 1969

Part 3 provides that if a child is born as a result of a surrogacy arrangement that is subject to a surrogacy order under the Care of Children Act 2004, the intending parents automatically become the parents of the child and the surrogate ceases to be a parent of the child from the birth of the child.

Part 4Amendments to Child Support Act 1991

Part 4 provides that a person who is named as an intending parent under a surrogacy order made under the Care of Children Act 2004 is a parent for the purposes of this Act (and so may be liable to pay child support).

Part 5Amendments to Births, Deaths, Marriages, and Relationships Registration Act 1995

Part 5 provides that if a child is born as a result of a surrogacy arrangement that is not the subject of a surrogacy order and the intending parents take custody of the child within 2 days of its birth, the intending parents (rather than the surrogate and her partner) have the duty to notify the Registrar of the birth. It also describes the circumstances in which a child born in these circumstances has only one parent for the purposes of this Act. (When a child is born as a result of a surrogacy arrangement that is the subject of a surrogacy order, the intending parents become the legal parents at birth under Part 3 of this bill, so automatically have the duty to notify the Registrar of the birth.) Finally, when a birth is a result of a surrogacy arrangement, this Part requires the Registrar to register information about the identity of the surrogate and any person who donated the embryo or cells for the pregnancy.

Part 6Amendments to Births, Deaths, Marriages, and Relationships Registration (Prescribed Information) Regulations 1995

Part 6 amends the regulations that prescribe the information that must be included on the birth certificate and when notifying a birth to the Registrar. It describes certain information about the surrogate and any donors of embryos or cells that must be notified when a birth is the result of a surrogacy arrangement.

Part 7Amendments to Social Security (Exemptions under Section 105) Regulations 1998

Part 7 provides that any surrogate who is a beneficiary may apply for an exemption from some or all of her work test obligations under the Social Security Act 1964 if she is at least 27 weeks pregnant or is suffering from complications arising from the pregnancy. In the same circumstances, a surrogate who is subject to the obligations under section 60Q of the Social Security Act 1964 (to prepare for employment etc) may apply to be exempt from those obligations.