Stewart Dalley of Dalley Sundar Barristers and Solicitors advises what queer intended parents need to know about surrogacy, adoption and the law in New Zealand.
For many queer couples in Aotearoa, the dream of having children isn’t just emotional; it’s deeply bureaucratic. Between approval from the Ethics Committee on Assisted Reproductive Technology (ECART), surrogacy agreements, adoption law and guardianship rules, same-sex parents often discover that wanting a baby and legally being someone’s parent are two very different things.
To help demystify the process, YOUR EX spoke with family and immigration lawyer Stewart Dalley of DS Law, one of the country’s most experienced legal voices in queer parenthood and, notably, part of the first same-sex de facto couple in New Zealand to adopt children. Based on both his legal work and lived experience, here’s what queer couples need to know before starting their journey.
Surrogacy in NZ: Traditional vs Gestational – Does It Matter Legally?
In New Zealand, there is no legal distinction between a traditional surrogate (who uses her own eggs) and a gestational surrogate (where eggs and sperm come from donors or intended parents). The surrogate is always the legal mother at birth, regardless of biology. If she has a partner, that person is recognised as the second legal parent.
The intended parents, even if genetically connected, have no legal parental status until an adoption is approved by the court. This can take months, during which time queer parents are in legal limbo.
A draft bill currently with the select committee could ease that process, but only for ECART-approved gestational surrogacy. It would allow intended parents to be recognised without adoption. Until then, however, the law sees birth as parenthood, not biology or intention.
What if a Surrogate Changes Her Mind?
New Zealand has no express legal protection for intended parents if a surrogate decides not to relinquish the baby.
According to Dalley, “In one recent case, the court ordered that the surrogate and the intended parents share day-to-day care of the child.” That outcome, unimaginable for most hopeful parents, highlights why emotional preparation and legal clarity are as important as the medical process itself.
Protecting Your Hearts (and Rights): Practical Steps for Intended Parents
Before any medical process begins, make sure all parties have:
- Independent counselling, separately and then together
- Independent legal advice, not from the same lawyer
- A written surrogacy agreement. While not all clauses can be enforced, it records intentions and helps guide any court process
- Real conversations about ongoing contact and origins. “Every child has a fundamental right to know where they come from,” Dalley says. If anonymity or secrecy is part of the plan, think twice
Domestic vs International Surrogacy: The Reality Check
While international surrogacy may appear faster or more transactional, it can be significantly more complicated for queer couples.
Many countries still do not allow same-sex intended parents to enter surrogacy agreements at all.
Some operate under anonymous egg donor systems, meaning your child may never be able to trace their biological origins.
New Zealand does not recognise foreign parental orders, even if your names are on an overseas birth certificate. You will still need to adopt your own child from overseas, often while stranded offshore for up to 12 weeks with a newborn, unable to return until the adoption hearing and New Zealand passport are granted.
By contrast, domestic surrogacy keeps you on home ground, connected to your community and healthcare system. It is still a process — ECART approvals, Oranga Tamariki assessments and the adoption itself — “but at least that takes place from the comfort of your own home,” Dalley points out.
Co-Parenting Between Two Same-Sex Couples: Four Adults, One Baby – What the Law Allows
Some queer families are formed through co-parenting arrangements between two couples — for example, a lesbian couple and a gay couple choosing to raise a child together. While that reflects modern whānau structures, the law does not.
Here is how parenthood is assigned legally:
- The person who gives birth is the legal mother
- Her partner (if any) is also legally recognised as a parent
- A sperm donor is not considered a parent, even if biology is involved
- The donor’s partner has no status at all
The other couple may apply for guardianship and day-to-day care orders, but those expire when the child turns 18 and do not equal legal parenthood. Adoption by the second couple would legally displace the first couple — the law still only allows for two parents.
Co-parenting agreements can lay out intention and roles, and courts can use them as guidance. However, they are only enforceable if a judge believes they serve the child’s best wellbeing above all else, not the adults’ preferences.
Why Queer Parents Still Fight for Legal Recognition – Even After Birth
Dalley and his partner chose to adopt their own children despite being their primary caregivers from birth. “We weren’t married, and at the time, the law only recognised straight married or de facto couples,” he says. “So we made a deliberate choice — apply to adopt as a same-sex de facto couple and force the system to acknowledge us.”
Their adoption was granted, creating a legal precedent that helped shift interpretation going forward. Today, same-sex couples can adopt regardless of marital status — but the emotional strain remains. Months of parenting without legal status is still a standard part of the process.
“It’s still a draining experience and you are still left in legal limbo for months after the baby has been born with no legal status until the adoption goes through. We need to do far better,” Dalley insists.
Next Steps
If you are a queer couple planning a family in New Zealand, do not start with doctors — start with lawyers and counsellors.
The medical part may take weeks. The emotional and legal groundwork takes months, and in many ways defines the health of your future family more than any fertility treatment.
Queer families are already here. The law is still catching up.
Thinking about starting your family? Don’t navigate New Zealand’s surrogacy and adoption laws alone. 🏳️🌈
Speak with a legal team that understands both the law and the lived experience of queer parenthood.
💼 Visit DS Law to book a consultation with Stewart Dalley and the team today.
