Lawyer, Stewart Dalley of D&S Law, has both lived and professional experience of surrogacy, having represented several people with their surrogacy journeys (domestically and internationally) as well as having three children of his own through surrogacy.
Stewart is considered an expert in the field of the laws related to human assisted reproduction, including surrogacy, sperm, egg, and embryo donations. Indeed, Stewart has recently been appointed to an expert advisory panel to New Zealand’s Law Commission who are reviewing New Zealand laws on surrogacy.
Currently, New Zealand treats the surrogate as the mother of any child she gives birth to, and her partner (if she has one) the child’s other parent. This applies even if there is no biological connection to the birth mother or her partner. This also applies to international surrogacies, even when the country the child is born in treats the intended parents as the birth parents. For example, in some states in the USA you can obtain a birth certificate naming the intended parents as the birth parents of the child. However, if that child was born out of a surrogacy arrangement, New Zealand will not recognise the intended parents as the child’s legal parents. Meaning, intended parents need to adopt the child in New Zealand before they are recognised by New Zealand as the child’s legal parents.
Surrogacy agreements in New Zealand are not legally binding. Meaning that either the surrogate or the intended parents do not have to adhere to the agreement – they can walk away at any time, either prior to pregnancy, during it, or even after the child is born. Instances of people changing their mind after pregnancy are very rare in New Zealand, but it has happened. For this reason, many people want to see New Zealand’s laws updated to offer greater protection for all, which focusses on the welfare and best interest of the children involved.
Whilst surrogacies in New Zealand cannot be commercial (they must be altruistic), New Zealanders can enter commercial surrogacy arrangements in other countries where it is legal.
COVID-19 has impacted New Zealanders either with a current surrogacy arrangement or those wanting to enter such an arrangement. Luckily, New Zealand reacted well to assist New Zealanders whose children were born from an international surrogacy arrangement but were unable to return to New Zealand because the child could not obtain a passport within a reasonable timeframe. This has seen the courts conducting adoption hearings virtually, resulting in the child then becoming a New Zealand citizen and therefore able to get a New Zealand passport to travel.
We are still seeing New Zealanders entering new surrogacy arrangements despite the travel and border restrictions brought about by COVID-19, by utilising domestic fertility clinics to assist in the collection and dispatch of gametes internationally. The hope is that once a child is born, the border restrictions may have lifted, enabling greater freedom of movement. However, where border restrictions remain in place, and the surrogacy arrangement has been entered into since the outbreak of COVID-19, New Zealanders may find a less sympathetic response from the various government departments involved and the courts, meaning they may face a prolonged stay in the country the child is born in while they await a passport being issued by that country so that the child can then apply for a visa to come to New Zealand for an adoption court hearing in person.
D&S Law are a boutique law firm with a wealth of knowledge and experience across a range of areas of the law. Our team are well-versed in immigration law and visa applications, immigration deportations, refugee claims and appeals. Stewart Dalley is also regarded as an industry expert on all aspects of fertility law, including domestic and international surrogacy, sperm donor agreements, ECART legal reports and adoptions. Pooja Sundar also specialises in family (domestic) violence matters.
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