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6 Things to Know When Considering International Surrogacy

With borders reopening and international travel becoming more possible, we are seeing an increase in enquiries about international surrogacy.

An international surrogacy occurs when one of the parties lives overseas. For example, in many of our international surrogacies, the intended parents live in New Zealand while their surrogate lives in the United States of America or elsewhere overseas.

Successfully undertaking an international surrogacy is not a straight forward endeavour. It usually involves a number of professionals and government agencies here and overseas. Here are 6 things we think you should know if you are considering international surrogacy as a means to achieving the family you desire:

1. Where to undertake the surrogacy?

Think carefully about where you undertake your surrogacy and the professionals that you engage there.

Destinations that were previously very popular for international surrogacy are now closed off to foreigners as options, either due to legal restrictions in those countries (eg India, Thailand) or deteriorating domestic conditions (eg Ukraine).

When choosing where to undertake your surrogacy, consider language barriers, cultural differences and the ethical considerations that come with surrogacy. I know of one situation where the intended parents felt completely frustrated by the language issues, safety concerns, delays and culture around payments that they experienced in the country they chose to undertake their international surrogacy in.

Do your due diligence - what has been the experience of other intended parents who used that country/clinic/agency for their surrogacy? Is surrogacy regulated in the country you are considering? A lack of regulation can entail considerable risk for all involved, including the child. Does the country have safeguards in place for the rights of children born of surrogacy and, in particular, to what extent have the Verona Principles been considered by lawmakers there?

2. Don't assume the law will see things the way you think it should: Although you may put in place legal arrangements and court orders in the country where you undertake the surrogacy, this won’t mean you have legal parenthood in the eyes of the law in New Zealand. Under New Zealand law, your surrogate will be deemed to be the child’s mother. If she has a partner, that partner will be deemed to be the child’s other parent. This means that you will need to obtain an adoption order in NZ to be recognised here as the child’s parents. This is the case even if the child is genetically related to you.

3. Getting home may not be easy: Because the law here doesn't recognise you as the child’s legal parents (without an adoption order being made), this means you can’t simply collect baby and return to New Zealand. You are unable to simply rely on your own status as citizens of New Zealand to obtain citizenship here for your surrogate born child. Usually, a special entry visa will need to be obtained to bring your child into New Zealand.

4. Hoop-jumping! The surrogacy arrangements, adoption and immigration issues all involve considerable hoop jumping and coordination between you, your lawyers (here and overseas) and multiple government departments. The adoption process can be particularly intrusive and involves extensive enquiries of you, including enquiries by a Social Worker. Given the work to be done, you are best to start the process as early as possible.

5. Prepare to have to spend longer in the country where your child is born than you probably hope to spend. There are a number of steps to take and documents to obtain before you are able to return to New Zealand with your surrogate born child. This will usually take a lot longer than you expect! In the meantime, you have to accommodate yourself and care for a newborn in a foreign country, away from your supports. The possibility that stress and anxiety will accompany this should not be underestimated.

6. Pandemics (and other unexpected challenges) happen: Several years ago, an earthquake in Nepal had unexpected consequences for surrogates there, unborn children and intended parents overseas.

More recently, the war in Ukraine has meant many surrogates and intended parents have faced considerable stress and upheaval as foreign nationals faced an impossible situation around travelling to Ukraine, surrogates faced increasing danger to them and their families and legal issues arose if a surrogate relocated to countries with different laws about parenthood and surrogacy.

The pandemic made the international surrogacy experience even more uncertain and challenging given travel restrictions, restrictions on who could be present at hospital and issues around obtaining children’s passports. One silver lining out of Covid was that the Ministry of Justice responded by implementing a temporary protocol. This protocol was designed to assist with the process of returning to New Zealand with a surrogate born child by enabling the adoption process to occur while the intended parents and baby were still overseas. This protocol is due to be reviewed in September.

Although the world is opening up again and restrictions have eased considerably, the pandemic and the war in Ukraine are important reminders that events beyond our control can happen overseas which can significantly impact upon a surrogate and child's safety and the access of intended parents to their surrogate and unborn child.

If you are thinking about surrogacy, here or overseas, we recommend you are proactive and get legal advice before committing to an arrangement. We can assist you to navigate the international surrogacy process with greater clarity and efficiency.

The information in this blog is current at 1 July 2022. The information in this blog is general, educative information only. As such, it should not be relied on in place of getting your own legal advice. If you'd like to have us assist you with your own adoption or surrogacy questions, then book a free consultation now.

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