E 3188 Report 88 New Issues in L egal Parenthood April 2005 Wellington, New Zealand The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: The Honourable Justice J Bruce Robertson – President Richard Clarke QC Honourable Justice Eddie Durie Frances Joychild Professor Ngatata Love QSO JP Dr Warren Young Helen Aikman (Senior Consultant) Neville Trendle (Senior Consultant) The Executive Manager of the Law Commission is Bala Benjamin The office of the Law Commission is at 89 The Terrace, Wellington Postal address: PO Box 2590, Wellington 6001, New Zealand Document Exchange Number: SP 23534 Telephone: (04) 473–3453, Facsimile: (04) 471–0959 Email: [email protected] Internet: www.lawcom.govt.nz National Library of New Zealand Cataloguing-in-Publication Data New Zealand. Law Commission. New issues in legal parenthood / Law Commission. (New Zealand. Law Commission. Report) Includes index. ISBN 1-877316-07-5 1. Parents—Legal status, laws, etc.—New Zealand. 2. Parent and child (Law)—New Zealand. 3. Parenthood. I. Title. II. Series. 346.93017—dc 22 Report/Law Commission, Wellington, 2005 ISSN 0113–22334 ISBN 1–877316–07–5 This report may be cited as: NZLC R88 Also published as Parliamentary Paper E3188 This report is also available on the Internet at the Commission’s website: http://www.lawcom.govt.nz ii NEW ISSUES IN LEGAL PARENTHOOD C o n t e n t s Para Page Glossary vii Letter of transmittal xiii Foreword xv Acknowledgements xvi Executive summary xvii Recommendations xxii 1 INTRODUCTION 1 Issues in this report 1.1 1 The changing nature of families 1.3 1 The changing nature of parenthood laws 1.13 4 Guiding principles used in this report 1.17 5 Sources we have drawn from 1.26 7 Families in the future 1.29 8 2 CHILDREN, PARENTS AND THEIR FAMILIES 10 Family models 2.1 10 Genetic connection in parent–child relationships 2.5 11 Best families for children 2.10 12 The approach of the Commission 2.19 14 3 LEGAL PARENTHOOD AND WHY IT IS IMPORTANT 15 Legal parents and legal parenthood 3.1 15 The view of the Commission 3.5 16 Why is legal parenthood important? 3.6 16 Parenthood and guardianship 3.6 16 Legal parenthood and genetics 3.18 19 Children’s interest in legal parenthood rules 3.19 19 4 ESTABLISHING PARENTHOOD BY PRESUMPTION 21 Presumption of paternity 4.1 21 Historical purposes for the presumption 4.7 22 Benefits of the presumption 4.8 23 Issues with the presumption 4.11 23 Views from submissions and consultations 4.22 26 Civil Union Act 2004 4.25 26 Options for reform 4.26 26 The view of the Commission 4.33 28 Presumption of maternity 4.48 31 Issues with the presumption of maternity 4.49 31 5 PROVING PARENTHOOD BY DNA TESTING 33 Background 5.1 33 Regulation of DNA parentage testing 5.11 35 Options 5.15 36 The view of the Commission 5.25 38 Samples other than blood 5.30 39 Voluntary testing 5.33 40 iii Para Page Knowledge of test and consent – one or both parents 5.37 41 Consent of children and young persons 5.42 42 Options for a legal scheme for voluntary testing 5.45 43 The view of the Commission 5.49 43 Court intervention 5.54 45 Current law 5.54 45 Best interests of the child 5.59 46 Options 5.62 47 The view of the Commission 5.63 47 Sanctions 5.72 48 6 DONOR GAMETE CONCEPTION AND LEGAL PARENTHOOD 51 The legal landscape 6.2 51 Agreements between parents and known donors 6.9 54 Transferring legal parenthood when donor gamete conception is used 6.12 55 Alternative means of transferring parenthood 6.17 56 Should a known donor be able to become a legal parent? 6.28 58 The decision in P v K 6.28 58 Legal parenthood for a known donor 6.31 59 Consultations with families created by known donor insemination 6.33 60 Legislative and judicial approaches 6.37 61 The view of the Commission 6.51 65 Proposed model 6.58 67 More than two legal parents 6.67 70 Section 41 agreements 6.74 72 Court’s ability to vary agreement 6.76 72 Child support liabilities 6.85 74 Should the law continue to enable a child to have one legal parent? 6.88 75 7 SURROGACY AND LEGAL PARENTHOOD 78 Background 7.1 78 “Traditional” or “partial” surrogacy 7.2 78 “Gestational” or “full” surrogacy 7.4 78 Incidence of surrogacy in New Zealand 7.7 79 The shift towards legislative intervention 7.9 79 The position in New Zealand 7.12 80 Ethical approval requirements under NECAHR 7.13 81 Legal parenthood 7.18 81 Difficulties arising from the application of the law 7.22 82 Overseas legislative approaches to transferring parenthood 7.31 84 Regulation and transfer by prior approval of the surrogacy agreement 7.31 84 Enforceable surrogacy agreements 7.38 86 Parental orders post-birth 7.41 86 Judicial approaches when arrangements have broken down 7.46 87 The view of submitters 7.53 89 The view of the Commission 7.57 89 Best interests on a case-by-case basis 7.60 90 iv NEW ISSUES IN LEGAL PARENTHOOD Para Page Automatic transfer 7.61 90 Considerations for reform 7.65 91 Proposed model 7.73 93 8 MISTAKEN IMPLANTATION AND LEGAL PARENTHOOD 98 Introduction 8.1 98 Perry-Rogers v Fasano 8.5 99 Genetic and gestational motherhood 8.8 99 Legal parenthood under New Zealand law 8.10 100 More than two parents? 8.15 101 9 EMBRYO DONATION AND LEGAL PARENTHOOD 103 Introduction 9.1 103 Legal parenthood of children born through embryo donation 9.4 104 10 IDENTITY 106 Introduction 10.1 106 Human Assisted Reproductive Technology Act 2004 10.3 106 Outstanding issues 10.11 109 Genetic identity – a legal right to know? 10.12 109 Mäori view of identity 10.18 111 The importance of genetic identity 10.23 112 Consultations and submissions 10.35 115 Enabling children to know they are donor-conceived 10.40 116 Legal duty on parents to tell? 10.40 116 Birth certificates 10.44 116 The view of the Commission 10.53 118 Annotations 10.54 118 Education and counselling 10.67 120 The way forward 10.77 122 Age 10.79 123 People conceived by donor gametes prior to 21 August 2005 10.84 124 How successful are voluntary registers? 10.88 125 Counselling for offspring and donors using the voluntary register 10.91 126 DNA testing to establish a genetic link 10.95 127 Should the Human Assisted Reproductive Technology Act 2004 apply retrospectively? 10.97 127 Donor offspring not conceived through clinics 10.106 129 Naming fathers on the birth record 10.115 130 Getting registered 10.116 130 Initiatives to get fathers on the birth record 10.121 132 Submissions 10.127 133 The view of the Commission 10.132 134 INDEX 136 CONTENTS v vi NEW ISSUES IN LEGAL PARENTHOOD G l o s s a r y Access order A person who obtains an access order from the Family Court has the right to contact with the child. In most cases, only a parent or step-parent may apply for an access order. As of 1 July 2005, under the Care of Children Act 2004, access orders will be replaced by parenting orders. Advisory Committee on Assisted Human Reproductive Procedures and Human Reproductive Research (advisory committee) This committee is established under section 32 of the Human Assisted Repro- ductive Technology Act 2004 and consists of between 8 and 12 members appointed by the Minister of Health. It provides advice to the Minister and issues guidelines and advice to the ethics committee on any matter relating to assisted human reproduction. It and the “designated ethics committee” replace the National Ethics Committee on Assisted Human Reproduction (NECAHR) as from 21 August 2005. Assisted human reproduction (AHR) A range of procedures designed to assist a couple or an individual to conceive a child with medical assistance. Procedures may involve the use of donated sperm, eggs or a donated embryo to bring about conception. Under the Human Assisted Reproductive Technology Act 2004, assisted reproductive procedures and research fall into three categories: established procedures which do not require ethical approval before being undertaken, non-established activities which require ethics committee approval before being undertaken, and prohib- ited activities. Atawhai An orphan or adopted child, used interchangeably with “whängai”. Biological parents This term is commonly used in society to refer to genetic parents but is not used in this report. Developments in assisted human reproduction mean that it is now too general a term as it can also refer to persons without a genetic connection to the child (such as the gestational mother who is not a genetic parent). The term genetic parent(s) is used when reference is made to the parents whose gametes have resulted in the conception of the child. vii Commissioning parents The person or persons in a surrogacy arrangement who organise for the surrogate mother to gestate and give birth to a child for them to raise from birth. One or both of them may also be the child’s genetic parent(s) if their gametes were used in con- ception.