Craig Young explores the legislation intended to reform New Zealand’s surrogacy laws.
The Improving Arrangements for Surrogacy Bill provides the following amendments to existing parliamentary acts. The Human Assisted Reproductive Technology Act 2004 is amended so that while it will remain illegal to undertake a commercial surrogacy transaction within New Zealand, it will now be legal for an intending couple of prospective parents to facilitate a surrogate mother’s pregnancy and childbirth through meeting any ancillary expenses.
The Care of Children Act 2004 will be amended to make surrogacy orders enforceable if all parties to the surrogacy arrangement are in agreement. If this is conducted overseas, there must also be agreement with the surrogate mother’s national surrogacy regulatory framework.
Under amendments to the Status of Children 1969, the prospective parents will take over complete parental responsibilities upon completion of the surrogacy transaction.
The Births, Death and Marriages Registration Act 1995 will be amended so that there are new responsibilities attendant on the prospective parents to provide necessary details about the birth, the identity of the surrogate mother and any embryo donor in this context.
Under Social Security Act Regulation 1998 amendments, if surrogate mother beneficiaries who are more than twenty-seven weeks pregnant are experiencing difficult pregnancies, they may be exempt from MSD work test requirements.
Approval of surrogacy arrangements, a surrogacy register and the status of surrogacy orders are also included within the proposed legislation. The legislation underwent its first reading on 18 March 2022 unanimously and then underwent the select committee process. The Health Select Committee reported in November 2022, recommending further amendments to the operation of the regulatory Advisory Committee and Ethics Committees on Assisted Reproductive Technology, as well as the identity of donors information, international surrogacy arrangements and compatibility with the Treaty of Waitangi and the UN Convention on the Rights of the Child.
When it came to submissions to the select committee, it was noteworthy how many submissions came from government ministries and agencies, such as the Ministry of Justice, the Advisory Committee on Assisted Reproductive Technology and the Office of the Privacy Commissioner. Professional associations were represented by the Wellington Community Justice Project, Equal Justice Project, Nurses Society of New Zealand, the New Zealand College of Midwives and the Aotearoa New Zealand Association of Social Workers.
When it came to civil society groups, it was refreshing to see involvement from mainstream organisations like the venerable National Council of Women Inc, the Humanist Society of New Zealand, the Family Planning Association, Donor Conceived Aotearoa and the Disabled Peoples Assembly, The latter had some valid concerns expressed about disability discrimination issues during the surrogacy process and it is to be hoped this will be incorporated into the final document.
As for the other submissions, most of the individual submitters approved the reforms, with one or two exceptions. The anti-feminist “Ministry of Men’s Affairs” made an unsubstantiated proposal to restrict applicant prospective parents to those with fathers alone, which would discriminate against lesbians and single women and is probably incompatible with the Human Rights Act 1993 and Bill of Rights Act 1990.
(Speaking of which, one gay male submitter stated what he and his husband had been through in the context of the current legislative and regulatory minefield. If this bill is opened for further submissions, I would encourage other LGBTQ+ couples to make submissions in this context).
What was striking was that almost all of the submissions were positive, welcoming the proposed reforms – except, inevitably, from the Christian Right pressure group Family First. I will now necessarily address this because it pays to know what anti-LGBTQI+ organisations are arguing in this context. Notably, Family First was the only such pressure group submitting – there were none from the conservative Catholic “Family Life International” or anti-abortion groups. Surprisingly, the submission almost wholly cited the Law Commission Report on Surrogacy instead of the usual subcultural luminaries of questionable ‘scientific’ provenance. However, this only makes the case for delaying the proposed legislation to incorporate the Law Commission’s proposed amendments, not curtail it altogether.
The Law Commission Report also added additional issues of legislative compliance, including amendments to the Citizenship Act 1977, Income Tax Act 1977, Adoption Act 1955 and Births, Deaths and Marriages Registration Act 2001. Amendments to the original bill include new sections on information about surrogates, donors and surrogate-born children, parentage status and details about surrogacy arrangements and the approval process, as well as a review panel on the operation of the act.
Reading the Family First submission, one question occurred to me- why haven’t conservative Christian pressure groups drawn attention to this? It’s not only that- they have been conspicuously silent over puberty blockers too, using the flawed UK Cass Report as a rhetorical firewall against it, and ignoring the increasing volume of material from paediatrics, developmental psychology and endocrinology sources questioning the flawed methodology and poor construction of the document in question.
I’ve reached some interesting tentative conclusions about this- it would seem to be the case that the New Zealand Christian Right doesn’t have access to relevant professional expertise of its own when it comes to surrogacy or puberty blocker access. Destiny Church ignored this issue altogether. As for Family First, there are no signs of ‘fact sheets’ in this context as there have been on other issues, nor are they citing overseas subcultural luminaries without mainstream professional expertise in this context either. With this presentation, Family First has shown that it is essentially a reactive pressure group, responding primarily to media content and not on a broader basis. This may present opportunities to outflank them. Who knows, we might even make progress on some issues under this government yet.
The bill is currently open for further submissions until 28 September 2024, before the Health Select Committee, at which point the second and third readings will occur. If the legislation passes, it will then be submitted to the Governor General for royal assent. As yet, no additional submissions have been made. I would advise that we do so before religious social conservatives become aware of this debate and flood Parliament with the usual pro forma letters, biblical verse citations and warnings about divine judgement.
Interested readers are recommended to visit the parliamentary website for further details: http://www.parliament.nz
