October 26, 2023
For some people natural conception is not possible – so what are some of the alternatives available?
Adoption and surrogacy are two ways of forming a family when natural conception isn’t possible. Both have complex and sensitive issues that require careful planning and preparation, and involve ethical, legal, medical, social, and emotional aspects that affect all parties involved. Intended parents should be aware of the laws and policies regarding adoption and surrogacy in New Zealand and, due to the complexities, should always seek professional advice and support from the various agencies and organisations available.
To adopt a child in New Zealand, you must meet certain requirements and follow a legal process. The requirements vary depending on whether you are adopting a child from New Zealand or from overseas, and whether the child is born via surrogacy or not. In general, you must:
• be a New Zealand permanent resident;
• be at least 25 years old and at least 20 years older than the child, or be at least 20 years old and a relative of the child, or be one of the child's parents;
• be assessed and approved as suitable to adopt a child by Oranga Tamariki (Ministry for Children) or by an accredited adoption agency;
• apply to the Family Court for an adoption order and provide information about your age, health, finances, reasons for adoption, and any payments or religious conditions involved;
• obtain the consent of the birth parents or guardians of the child, unless they are unable or unwilling to give consent; and
• comply with the requirements of the Adoption Act 1955 and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, if applicable
This means for a domestic adoption adoptive parents must also be assessed and approved by Oranga Tamariki as suitable to adopt a child. You must provide references, medical reports, police checks, and consent to a child protection database check. You must also complete a pre-adoption education programme and attend an interview with a social worker. The adoption process also requires the consent of the child's birth parents, unless they are deceased, unknown, or unfit to consent. The child's views must also be considered if they are old enough to express them.
For intercountry adoption, where the child is born or living overseas, adoptive parents must be a couple who are both New Zealand citizens or permanent residents. You must also meet the eligibility criteria of both New Zealand and the country of origin of the child. You must be assessed and approved by Oranga Tamariki as well as by an accredited adoption agency such as ICANZ or AFS. You must also comply with the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, if applicable. This adoption process also requires the consent of the child's birth parents or legal guardians, unless they cannot be found or their consent is not required by law. The child's best interests and cultural identity must also be respected and protected.
If you are unable to carry a pregnancy yourself, you may consider surrogacy as an option. Surrogacy is when another woman carries and gives birth to a child for you. In New Zealand, there are some requirements for surrogacy that you need to be aware of. Currently, these include:
• You must have a medical condition that prevents pregnancy or makes pregnancy unsafe, or have unexplained infertility and have not become pregnant from other treatments.
• You must find a surrogate who is willing to donate her services altruistically, without any payment other than reimbursement of any expenses. Commercial surrogacy is illegal in New Zealand.
• You must obtain the approval of an ethics committee before proceeding with surrogacy. The ethics committee will assess the suitability of the surrogate, the intended parents, and the surrogacy arrangement.
• You must seek legal advice before entering into a surrogacy agreement. The agreement is not legally binding or enforceable, but it can help clarify the expectations and intentions of both parties.
• You must adopt the child after birth, as the surrogate and her partner are considered to be the legal parents under New Zealand law. The adoption process involves the Family Court and the Department of Internal Affairs.
The ‘Improving Arrangements for Surrogacy’ bill was introduced to parliament in 2023 to reform surrogacy laws and practice. Te Aka Matua o te Ture Law Commission made 63 recommendations including:
• Removing the need for intended parents to adopt their child born by surrogacy and establishing new processes to determine the legal parents of the child.
• Establishing a surrogacy birth register to support people born by surrogacy to access information about their birth origins and whakapapa.
• Clarifying the types of payments a surrogate can receive for costs relating to a surrogacy arrangement.
• Accommodating international surrogacy arrangements.
These recommendations were still before parliament when it recessed for the 2023 election.