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How to: Surrogate motherhood

Introduction

A surrogate mother is a woman who agrees with another person or couple to bear a child and then give the child to the other person or couple. A fee may or may not be involved.

In New Zealand, there is no legislation covering surrogacy. There are, however, several provisions of the ADOPTION ACT 1955 that may be relevant to surrogacy arrangements.

The rule against adoption for money

The most important provision in the ADOPTION ACT 1955 is section 25, which states that, unless the court consents to it, it is illegal for any person to give or receive, or to agree to give or receive, any payment or reward in consideration of the adoption or proposed adoption of a child or in consideration of arranging an adoption or proposed adoption.

A major issue for the parties to a surrogacy arrangement involving payment of money will therefore be whether the arrangement breaches section 25. This is a question that will be decided by a court on the basis of the particular circumstances of each case. However, the courts have been willing to find that a surrogacy arrangement does not breach this section.

The rule against advertising for adoption

Section 26 of the Act states that it is illegal to publish an advertisement indicating:

  • that the parent or guardian of a child desires to adopt out the child, or
  • that any person desires to adopt a child, or
  • that any person or organisation is willing to arrange for a child to be adopted

Again, the courts have been willing to hold that this section will not apply to a surrogacy arrangement.

The rights of the birth mother

Despite any surrogacy arrangement, a birth mother is the legal mother of a child and will therefore have rights in relation to day-to-day care, contact and guardianship. This could pose a difficulty if the birth mother refused to comply with the surrogacy arrangement.

Cautionary notes
  • Given that there is no legislation dealing specifically with surrogacy, it is essential that you obtain legal advice before entering into any arrangement of this kind. If the arrangement is not entered into properly, considerable difficulties may be experienced.

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