Think of family lawyers and many people will tell you they help their clients through a separation or divorce. However, family formation work is a key part of our work at Family Law Results. In this work, we advise and assist parties to surrogacy arrangements through the ethical and legal processes involved.
Simply put, surrogacy arrangements involve a surrogate agreeing to become pregnant and give birth to a child for a parent or parents who are unable to do so themselves. The Law Commission has summarised surrogacy as follows:
“Surrogacy is a unique method of building a family that provides intended parents with an opportunity to have a child when they are otherwise unable to do so. It can, however, involve complex legal, ethical, cultural and medical issues because it relies on the participation of the surrogate, who agrees to become pregnant, carry and give birth to a child for the intended parents.” (1)
In this blog, we give you a starting point to understanding some of the language and terms that are commonly used when discussing surrogacies and the common types of surrogacy arrangements.
A woman who agrees to carry and give birth to a child under a surrogacy arrangement is called a "surrogate". A person who is intending to be the parent of a surrogate born child, is usually referred to as the “intending parents”.
Surrogacy can occur in various circumstances and ways:
· A “traditional surrogacy” is where the surrogate's ovum and shares a genetic relationship with the child. These arrangements usually occur when the surrogate’s ovum is artificially inseminated with the sperm of either a donor or an intended parent. For example, in one case we worked on, Amanda agreed to be a surrogate for Sarah, her cousin, and Sarah's husband, Geoff. She was artificially inseminated with the sperm of Geoff. As a consequence, Amanda was genetically related to the resulting child as her egg/ovum was used to create the embryo.
· A “gestational surrogacy” occurs when a surrogate’s own ovum is not used. Instead, ovum and sperm from an intended parent and/or donor is used to create an embryo which is then implanted in the surrogate. This type of surrogacy occurs in most of our cases. For example, Miria and Tom entered into a surrogacy arrangement with a surrogate, Sonia. Sonia’s ovum was not used. Instead an egg donor was used and the embryo was created using that donated egg and Tom’s sperm. In some places, a surrogate in a gestational surrogacy is referred to as the "gestational carrier".
· Before proceeding with a gestational surrogacy arrangement, approval usually needs to be obtained from the Ethics Committee on Assisted Reproductive Technology. This is often referred to as “ECART” for short. Seeking ECART approval can take some time and involves submitting an application that is made up of a number of reports from different professionals, including counsellors, lawyers and medical professionals.
· Surrogacies in New Zealand are “altruistic surrogacies”. This means that the surrogate’s reasonable expenses related to the surrogacy may be paid (such as legal and medical costs) but she is not paid for acting as a surrogate. This differs from “compensated or commercial surrogacies” where a fee is paid to the surrogate in exchange for her agreement to, and participation in, the surrogacy arrangement. Compensated surrogacies in New Zealand are illegal and great care is needed around what expenses are paid for a surrogate.
· A “domestic surrogacy” in New Zealand is one where the intended parents and surrogate live in New Zealand. An “international surrogacy” is one where one of the parties lives overseas. For example, in many of our international surrogacy cases, the intended parents live in New Zealand but their surrogate lives in the United States of America or elsewhere.
Now that some of the language and arrangements used in surrogacy situations is clearer, keep an eye out for our other blogs in which we explore aspects of how surrogacies occur.
Names and any identifying information have been altered to protect the privacy of individuals. 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.
(1) Law Commission "Te Kōpū Whāngai: He Arotake. Review of Surrogacy", April 2022.