Communtity Law Manual | Gender & sexuality | Having children: Same-sex couples

Sexual orientation: Rights of non-heterosexual people

Having children: Same-sex couples

Couples who can't have a child together through sexual intercourse have almost exactly the same range of legal options for having children as other couples.

Sperm or egg donation

Human Assisted Reproductive Technology Act 2004

In New Zealand most sperm and egg donations are done through fertility clinics. Contact a fertility clinic for more information.

Legally, donors can't be paid, except that the people who are given the sperm or egg can pay their expenses.

Donating sperm or eggs through a fertility clinic

If you become a donor, you must provide identity information to the fertility clinic, and this information will be included on the official “HART” register (Human Assisted Reproductive Technology register) if a child is born from your donation. Recording the information on the HART register means the child and donor can access this information when they're older.

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 to produce a maximum of 10 children.

A donor can choose just to donate to a particular person or family they know.

Human Assisted Reproductive Technology Act 2004, s 65

People conceived from donated eggs or sperm 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.

Donating sperm 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 information-sharing, 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.

For donations made before 22 August 2005, people can choose whether or not to provide their details for the voluntary HART register.

Status of Children Act 1969, ss 17-18

If you become pregnant with donor egg, donor sperm, or both, you're automatically a legal parent of the child you're carrying. If you have a partner (of any gender) when you became pregnant, they're also a legal parent of the child, as long as they agreed to the procedure.

The donor is legally not a parent.

So if you and your partner are trying to have a baby, and you get pregnant with the help of a donation, you and your partner are automatically seen as the baby's legal parents, and the donor has no parental rights.

If you don't have a partner (or you're acting without your partner's consent), the donor still won't legally be a parent (unless they later become your partner, in which case they become a legal parent when they become your partner).

If a person isn't a legal parent under those rules, but they want to be, they will need to go through adoption and other procedures. See the chapter, “Parents, guardians and Caregivers”, under “Adoption”.

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.

That means that the surrogate – and the surrogate's partner, if they have one who has agreed to the arrangement – are the legal parents of the child. The donor or donors have no legal parenting rights, and neither do the people who intend to raise the child.

So 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 can legally do that. This means that you would have no legal right to force the surrogate to give up the child.

It's illegal to pay a surrogate for carrying the baby, but it's legal to pay for their reasonable expenses.

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 in Human Assisted Reproductive Technology committee. 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.

Adoption Act 1955

If you're not automatically the legal parent of a child conceived with the help of a donor or surrogate, you'll need to go through the adoption process to become the legal parent of the child.

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 a lawyer to go to the Family Court to start adoption proceedings. You will have to have the agreement of anyone else who is currently the legal parent (like a surrogate and their partner). A social worker will need to report to the court on whether you are an appropriate adoptive parent.

See below “Adoption by same-sex couples” for more information.

International surrogacy

Having a baby with the help of a surrogate overseas is legal in New Zealand, but complicated. You will have no legally recognised relationship with the child and will need to adopt the child. The child will have no automatic right to enter New Zealand.

Oranga Tamariki / Ministry for Children has information and advice about international surrogacy on its website (see “Other resources” at the end of this chapter). It recommends talking to several different government departments before you get started.

Adoption by same-sex couples

Can same-sex couples adopt?

Adoption Act 1955, s 3

Married couples can jointly adopt a child, and since 2013 this has included same-sex married couples.

Cases: [2010] NZFLR 629 (HC) – [2015] NZFC 9404

De facto couples – including same-sex couples it seems – are also allowed to adopt jointly. In 2010 the High Court ruled that a heterosexual de facto couple in a stable and committed relationship could adopt jointly. Later, in 2015, a Family Court decision extended this to include a same-sex de facto couple. Until there's a ruling on this specific issue from the High Court, other Family Court judges aren't necessarily bound to follow this latest decision about same-sex de facto couples, but it's still a significant legal milestone for this area.

It seems that a civil union couple – even a heterosexual one – would not be able to adopt jointly.

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