Why do we have to Adopt in a Surrogacy?


Tama and Samuel were very excited to meet with me. They were embarking on a surrogacy arrangement with their surrogate, Amanda. They hoped this would finally give them the child they had long wanted. They were meeting with me so that I could provide them with legal advice about the surrogacy arrangement and provide a lawyer’s report for their application to ECART (1) for ethical approval. Their excitement lessened when they learned they would have to adopt any child born as a result of the surrogacy. “But why do we have to do that?”, Tama asked “especially given we are using an egg donor and Sam’s sperm? Amanda wants us to be the parents and won’t be genetically related to baby!”.


Renee and Todd were stuck. They wanted to return to New Zealand to live after years spent living and working overseas. While overseas, thanks to surrogates, they were able to have 2 children. Under the laws where they lived during the surrogacies, a parentage order was made during the pregnancies and they were regarded as the legal parents of the children from birth. On deciding to return to New Zealand, they applied for citizenship by descent for their children only to be told that they were not legally recognised as the children’s parents under New Zealand law and hence the children did now qualify for citizenship as their descendants. The solution? To obtain an entry visa for the children to come to New Zealand and then adopt the children so that Renee and Todd are legally recognised as their parents. “But every other country we have lived in has recognised the original surrogacy and parentage order. Why do we now have to go to the time and cost of adopting? This is insulting and hurtful! We’re their parents!” exclaimed Todd.


These situations and the sentiments expressed by Tama and Todd are not unique. Many people struggle to understand why New Zealand law requires an adoption in surrogacy situations. Without an adoption, the intended parents do not possess the rights and responsibilities that come with being the legal parents of the surrogate born child.


There is no one, purpose built, law in New Zealand that both regulates the law around surrogacy and sets out who is the legal parent of a child born out of a surrogacy. Instead, we must pick through a patchwork of different laws to piece together the law as it applies to surrogacies. These laws were never created with surrogacy situations in mind. The result can be confusing and less than ideal.


One piece of law in our surrogacy patchwork, the Status of Children Act, currently assumes that a child’s legal mother is the woman who gives birth to that child. If that woman has a partner then that partner is also deemed to be a legal parent of the child. The intended parents have no legal recognition as parents of the child. This is the legal position even though:


  • the surrogate and her partner may have no genetic relationship at all to the child.

  • the intended parents may be generically related to the child (through the use of their ovum or sperm in creating the embryo).

  • the intended parents may have obtained orders overseas that give them legal parentage of the child.

  • this outcome is contrary to the desired outcome of the surrogate and intended parents that the child will be the legal child of the intended parents.

Despite all this, it is the legal position nonetheless. The surrogate is legally the child’s mother. The surrogate’s partner is a legal parent of the child. The intended parents have no legal relationship, rights or responsibilities to the child.


The legal “work around” to this situation is an adoption of the child by the intended parents. An adoption application has to be made to the Family Court. For an adoption order to be made, various hoops have to be jumped through. The surrogate and her partner, have to provide their informed consent to the adoption and receive legal advice before doing so. The intended parents must satisfy the Court that they are “fit and proper persons” to adopt and that the adoption promotes the child’s welfare. A comprehensive Social Worker’s report will be obtained and considered by the Court.


If an adoption order is made, the surrogate and her partner will no longer be the child’s legal parents and will have all parental rights in respect to the child removed. The adoption order will give the intended parents the legal recognition and status of being the child’s parents.


Despite their initial concerns and astonishment, Tama & Samuel and Renee & Todd all completed the adoption process. We were able to take them through the process step by step to see them secure legal parenthood of their children.


Names and any identifying information have been altered to protect the privacy of individuals. The information in this blog is current at 1 May 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 property questions, then book a free consultation now.


(1) Ethics Committee on Assisted Reproductive Technology


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