Hōngongoi | July 2021 @njesseApter aM, Te Whanganui-a-Tara, Aotearoa Wellington, New Zealand He Puka Kaupapa | Issues Paper 47 Te Kōpū Whāngai: He Arotake Review of Surrogacy Te Aka Matua o te Ture | 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 Aotearoa New Zealand. Its purpose is to help achieve law that is just, principled and accessible and that reflects the values and aspirations of the people of Aotearoa New Zealand. Te Aka Matua in the Commission’s Māori name refers to the parent vine that Tāwhaki used to climb up to the heavens. At the foot of the ascent, he and his brother Karihi find their grandmother Whaitiri, who guards the vines that form the pathway into the sky. Karihi tries to climb the vines first but makes the error of climbing up the aka taepa or hanging vine. He is blown violently around by the winds of heaven and falls to his death. Following Whaitiri’s advice, Tāwhaki climbs the aka matua or parent vine, reaches the heavens and receives the three baskets of knowledge. Kia whanake ngā ture o Aotearoa mā te arotake motuhake Better law for Aotearoa New Zealand through independent review The Commissioners are: Amokura Kawharu – Tumu Whakarae | President Helen McQueen – Tumu Whakarae Tuarua | Deputy President Donna Buckingham – Kaikōmihana | Commissioner Te Aka Matua o te Ture | Law Commission is located at: Level 9, Solnet House, 70 The Terrace, Wellington 6011 Postal address: PO Box 2590, Wellington 6140, Aotearoa New Zealand Document Exchange Number: SP 23534 Telephone: 04 473 3453 Email: [email protected] Internet: www.lawcom.govt.nz The Māori language version of this Issues Paper’s title was developed for Te Aka Matua o te Ture | Law Commission by Kiwa Hammond and Maakere Edwards of Aatea Solutions Limited. The title was finalised in conjunction with the Commission’s Māori Liaison Committee. Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te whakarārangi o tēnei pukapuka. A catalogue record for this title is available from the National Library of New Zealand. ISBN 978-0-9951291-1-5 (Online) ISSN 1177-7877 (Online) This title may be cited as NZLC IP47. This title is available on the internet at the website of Te Aka Matua o te Ture | Law Commission: www.lawcom.govt.nz Copyright © 2021 Te Aka Matua o te Ture | Law Commission. This work is licensed under the Creative Commons Attribution 4.0 International licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to Te Aka Matua o te Ture | Law Commission and abide by other licence terms. To view a copy of this licence, visit https://creativecommons.org/licenses/by/4.0 iii FOREWORD TE AKA MATUA O TE TURE | LAW COMMISSION Foreword For many New Zealanders, having children is an important aspiration. For some New Zealanders, surrogacy provides an opportunity to have a child when they are otherwise unable to do so. Surrogacy has become an established method of family building in Aotearoa New Zealand and around the world. However, because surrogacy relies on the participation of a third party to create a child, it can raise complex legal, ethical and medical issues. It can also raise issues of concern to Māori, particularly in relation to tikanga (customary practices), whakapapa (genealogy) and whanaungatanga (kinship). Te Aka Matua o te Ture | Law Commission is examining surrogacy law, regulation and practice in Aotearoa New Zealand. It will make recommendations to the Government to ensure that the law meets the needs and expectations of New Zealanders and protects the rights and interests of people involved in surrogacy arrangements, including children born as a result of a surrogacy arrangement, surrogates and intended parents. In this Issues Paper, we identify the issues with the current law, outline our guiding principles for surrogacy law reform and discuss options for reform that aim to reflect these principles. A key problem with the current law relates to legal parenthood. The law does not recognise surrogacy as a process that creates a legal parent-child relationship between the intended parents and the surrogate-born child. Instead, the surrogate and her partner (if she has one) are the legal parents at birth, according to rules that were originally designed to clarify the legal status of gamete donors. Intended parents must adopt the child under the Adoption Act 1955 to be recognised in law as the child’s parents. We think it is time the law caught up with the reality of surrogacy arrangements. In this Issues Paper, we propose a new legal framework to provide for the recognition of the intended parents as the legal parents of a surrogate-born child. Other significant matters we address in this Issues Paper include the financial support that should be available to surrogates, the information that should be available to surrogate-born children and how New Zealand law should accommodate international surrogacy arrangements. We encourage all New Zealanders to have their say. The feedback we receive on this Issues Paper will influence the final recommendations we will make in our report to the Government in 2022. Amokura Kawharu Tumu Whakarae | President iv HAVE YOUR SAY TE AKA MATUA O TE TURE | LAW COMMISSION Have your say We want to know what you think about the issues, options and proposals set out in this paper. Submissions on our Issues Paper must be received by 23 September 2021. You can make a submission online at surrogacy-consultation.lawcom.govt.nz. You can email your submission to [email protected]. You can post your submission to Review of Surrogacy Law Commission PO Box 2590 Wellington 6140 WHAT HAPPENS TO YOUR SUBMISSION? Te Aka Matua o te Ture | Law Commission will use your submission to inform our review, and we may refer to your submission in our publications. We will also keep all submissions as part of our official records. Information supplied to the Commission is subject to the Official Information Act 1982. We will publish the submissions we receive on our website once we have published our final report. Your submission will be publicly available, but we will not publish your name or contact details if you are submitting as an individual and not on behalf of an organisation. If you do not want us to release identifying information or any other part of your submission or do not want your submission to be referred to in our publications, please explain in your submission which parts should be withheld and the reasons. We will take your views into account in deciding: • whether to withhold or release any information requested under the Official Information Act; • if and how to make your submission publicly available on our website; and • if and how to refer to your submission in our publications. The Commission complies with the Privacy Act 2020, which governs how it collects, holds, uses and discloses personal information you provide. You have the right to access and correct your personal information. v ACKNOWLEDGEMENTS TE AKA MATUA O TE TURE | LAW COMMISSION Acknowledgements Te Aka Matua o te Ture | Law Commission gratefully acknowledges the contributions of the people and organisations that have shaped our Issues Paper, especially those individuals who generously shared with us their personal experiences of surrogacy. We acknowledge the generous contribution and expertise from our Expert Advisory Group: • Dr Claire Achmad • Associate Professor Debra Wilson • Margaret Casey QC • Stewart Dalley We are also grateful for the support and guidance of the Māori Liaison Committee to Te Aka Matua o te Ture | Law Commission. We acknowledge individuals who have engaged with us to share an ao Māori perspective on surrogacy, including Annabel Ahuriri-Driscoll (Ngāti Porou, Ngāti Kauwhata, Rangitāne, Ngāti Kahungunu), Professor Jacinta Ruru (Raukawa, Ngāti Ranginui, Ngāti Maniapoto, Pākehā), Karaitiana Taiuru (Ngāi Tahu, Ngāti Rārua, Ngāti Kahungunu, Pākehā), Professor Marewa Glover (Ngāpuhi) and Te Ripowai Higgins (Tūhoe). We emphasise nevertheless that the views expressed in this Issues Paper are those of the Commission and not necessarily those of the people who have helped us. Nō reira, ko tēnei mātou e mihi nei ki a koutou, kua whai wā ki te āwhina i a mātou. Tēnā koutou, tēnā koutou, tēnā koutou katoa. The Commissioner responsible for this project is Helen McQueen. The project is led by Principal Legal and Policy Adviser Nichola Lambie. The legal and policy advisers who have worked on this Issues Paper are Briar Peat (Ngāti Rangiwewehi, Ngāti Whakaue) and Samuel Mellor. The law clerks who have worked on this Issues Paper are Georgia Drummond, Marko Garlick and Natalie Vaughan. 1 CONTENTS TE AKA MATUA O TE TURE | LAW COMMISSION Contents Foreword .............................................................................................................................................................. iii Have your say .................................................................................................................................................... iv Acknowledgements .......................................................................................................................................... v Glossary ................................................................................................................................................................ 3 Chapter 1: Introduction ....................................................................................................................................