Surrogacy is legal in New Zealand if it is performed altruistically, where the surrogate donates her services selflessly, without any compensation beyond the coverage of expenses.
[2] The HART Act also makes it illegal to give or receive valuable consideration for participating in or arranging surrogacy, but also provides that there may be exceptions to this, being situations where reasonable and necessary expenses are incurred.
Any dispute regarding a baby born of surrogacy will be resolved by the Family Court, and the judge will make their decision in the best interests of the child.
[17] These arrangements have significant legal complexities, as well as a high risk of humanitarian problems that may affect the surrogate mother and the child.
The Ministry for Vulnerable Children has issued country warnings for jurisdictions that potential parents are advised to avoid, which include: The increase in international surrogacy arrangements have led to a number of concerns about the human rights of the child, the surrogate mother and the genetic or intended parents.
[22] If it is not possible to determine a child's nationality, it will not be able to obtain a passport in order to travel and remedy the statelessness and lack of parentage.
The Family Court has tended to find that intercountry adoption requirements do not apply in such cases, as the child born in an international surrogacy arrangement is intended to have the same habitual residence as the intended parents, not where the child was born, which is often the surrogate mother's habitual residence, as they often do not have legally identifiable parents in that location.
Yet, the law surrounding surrogacy fails to recognise this, and instead provides that the legal parents of the child are the surrogate mother and her partner.
This could be an issue where the genetic parents of the child are culturally different to that of the surrogate mother, which is often true of international surrogacy arrangements.
One of the concerns that arises in international surrogacy arrangements is the rights of the surrogate mother, especially when it comes to informed consent and exploitation.
It is accepted that in no circumstances should the surrogate mother be forced by the intended parents or anyone else to enter into a surrogacy arrangement.
Before allowing a child a temporary travel visa to enter New Zealand in order to be adopted, the Ministry of Immigration will consider whether there has been informed consent from the surrogate mother.
[17] However, it has been widely questioned whether women in impoverished countries can actually give informed consent to surrogacy arrangements.
[29] For example, the intending parents may require that the surrogate mother not travel to certain places or do certain things while she is pregnant, in order to protect the pregnancy and the child.
In September 2019, a 30,000 signature petition was submitted to the House of Representatives calling for an overhaul of the surrogacy process.