Surrogacy and IVF
Overview
Status of Children Act 1969, s 17; Adoption Act 1955
In New Zealand, you can use egg and sperm donation or surrogacy to have a child. Regardless of how the child is conceived, the person who gets pregnant is automatically the child’s legal caregiver and guardian. To change this, you’ll need to adopt the child after they are born.
Having a baby with a donor or surrogate
Sperm or egg donation through a fertility clinic
Human Assisted Reproductive Technology Act 2004, s 65
In New Zealand, most sperm and egg donations are done through fertility clinics.
Legally, donors can’t be paid for their sperm or eggs, but they can be reimbursed for reasonable expenses involved with donating, like travel costs.
Donors have to provide identity information to the fertility clinic, which will be included on the official Human Assisted Reproductive Technology register (“HART”).
If a child is born via an egg and/or sperm donation, the child can access some information on their genetic history once they are 18 or over (or 16 if the Family Court agrees). Donors can ask to find out the name of any children born from their donation, but the child must be 18 or older and give their permission for the donor to get their details.
Donors need to have counselling and complete various health checks before they donate. Clinics are allowed to use sperm or eggs from the same donor for a maximum of 10 children.
A donor can choose to only donate to a particular person or family they know.
Sperm donation in a private arrangement
For people who conceive a child in private donation arrangements, without going through a fertility clinic, none of those rules explained above about donation or registration of information apply, and you can’t get your information included on the HART register.
The people involved need to come to their own agreements about sharing information, and about how many children can be conceived using sperm from the same donor – but these arrangements are not legally enforceable.
It is a good idea to write down any medical and family information about the donor that the family wants to be available to the child later on.
Who is the legal parent of a child conceived using a donor?
Status of Children Act 1969, ss 17–18
The person who becomes pregnant (with donor egg and/or donor sperm) is automatically the legal parent or caregiver of the child they are carrying, even if you have an agreement about who will become the child’s parent when they are born.
If the pregnant person has a partner when they became pregnant, that partner is also a legal caregiver of the child, as long as they agreed to the procedure.
The donor is not the legal caregiver, and doesn’t have any legal parental rights.
If a person isn’t a legal caregiver under those rules, but they want to be, they will need adopt the child after they are born (see: “Adoption” for more on this process).
Surrogacy is legal, but not enforceable
Human Assisted Reproductive Technology Act 2004, s 14
Surrogate arrangements, where someone volunteers to carry a baby for someone else, are legal in New Zealand, but are not legally enforceable. In other words, it’s not against the law to have these arrangements, but a person can’t go to the courts to get them to enforce whatever was decided by the people involved when they made the arrangement.
The person who becomes pregnant is automatically the legal parent or caregiver of the child they are carrying (see above). The donor has no legal rights to the child, before or after they are born, unless they adopt them.
Even if you have an agreement with a surrogate that you will adopt the child after birth, a surrogate who wants to cancel or change the arrangement and raise the child themselves can legally do that. You can’t force the surrogate to give up the child.
It is illegal to pay a surrogate, but they can be reimbursed for reasonable pregnancy-related expenses, like antenatal classes or ultrasounds.
You need approval for surrogacy involving IVF
If your surrogacy needs to involve in vitro fertilisation (“IVF”), it has to be approved by the Ethics on Human Assisted Reproductive Technology committee (“ECART”). Oranga Tamariki will also assess the adults involved to make sure the arrangement is in the best interest of any child who may be conceived.
For more information about IVF approval and ECART, go to www.ecart.health.govt.nz/about-us.
How to become the legal parent of a child conceived using a donor or surrogate
If you’re not automatically the legal caregiver of a child conceived with the help of a donor or surrogate, you’ll need to legally adopt the child to become their caregiver.
If the arrangement was through a fertility clinic using IVF, Oranga Tamariki will be involved from the very start to approve you as an appropriate adoptive parent.
If it was a private arrangement, you will need to go to the Family Court to approve it. You’ll need a lawyer to help you. You will have to get the agreement of anyone else who is currently the legal caregiver – for example, the surrogate and their partner. A social worker will need to report to the court on whether you are an appropriate adoptive parent. For more information about this process, see: “The adoption process”.
International surrogacy
Having a baby with the help of a surrogate overseas is legal in New Zealand, but complicated. Like any surrogacy arrangement, you’ll have no legally recognised relationship with the child until you adopt them. The child doesn’t have an automatic right to enter New Zealand unless their birth parent does.
Oranga Tamariki has information and advice about international surrogacy on its website (see: “Where to go for more support” at the bottom of this page). They recommend talking to a couple of different government departments before you get started with this process.
