BORN INTO LEGAL LIMBO

New Zealand’s surrogacy laws belong to another era. Decades on from being written, the families caught up in them are paying an enormous price. WORDS HAYLEY BARNETT

Imagine spending years trying to have a child, enduring miscarriages and failed fertility treatments. Maybe biology just isn't on your side and you spend forever searching for someone to carry your baby to full term. When you finally find a surrogate willing to do so, everyone in the room knows exactly who the parents are. Except the law.

Under New Zealand’s current framework, the intended parents – as in the people who created that embryo, who have longed for that child and will take them home and raise them – are legal strangers to their own baby at birth. The surrogate and her partner are the legal parents, and until a lengthy, costly adoption process plays out over months or years, that’s how it stays.

This is the reality for thousands of New Zealanders who build their families through surrogacy, but according to the experts working alongside them, it doesn't have to be this way.

“Nobody gets to surrogacy easily,” says Stewart Dalley, a family lawyer who has spent years working on such cases. He was part of the first same-sex de facto couple in New Zealand to jointly adopt their children.

“For a gay couple, you don’t really have any other option than surrogacy because ordinary adoptions are rare as hen’s teeth. But for a heterosexual couple, you’ve probably gone through multiple years of infertility, unexplained infertility, multiple miscarriages, all of those things, which place a massive emotional drain on you. When you get to the point where surrogacy is your only option, then begins the long, bureaucratic road to becoming the parents.”

Under New Zealand law, the woman who gives birth to a child is automatically recognised as its legal mother, regardless of whether she has any genetic connection to that child. Her partner, whether male or female, is recognised as the other legal parent. Legally, the people who may have created the embryo and will raise it from birth don’t have any such status.

“What the law treats mum and dad as is sperm donor and egg donor,” explains Stewart. “Nobody intended this to be the situation. I think it was just short-sighted. The law hasn't kept pace with technology and reality.”

The practical consequence is that intended parents must go through a formal adoption process to be legally recognised as the parents of their own child. It’s a process that Caren August, a counsellor at Fertility Associates, says typically runs for around two and-a-half years from first appointment to completed adoption. But the absurdities don’t stop there.

Christchurch influencer Rebecca Keil became a surrogate in 2019 for Wellington couple Tess Dunford and Dan Stemp after seeing Tess’s plea for a surrogate on Instagram. Tess had suffered a postpartum haemorrhage during the birth of their first child that required an emergency hysterectomy. Although it was devastating, her ovaries were intact, meaning IVF and surrogacy were possible. For Rebecca, the decision to help was straightforward, however, the legal reality that followed was anything but.

“We don’t have surrogacy laws,” she says. “We have ancient adoption laws, which make the process a whole lot harder.”

Because Rebecca was married, her husband Jared was automatically presumed to be the baby’s legal father, despite having no biological connection whatsoever to the child. His name, and his ethnicity, went on the birth certificate.

“He’s a whole-ass fruit salad,” jokes Rebecca. “On this child’s birth certificate, it says his father is Māori and Samoan, and he’s a Pākehā child. It’s so crazy and misogynistic.”

Caren recognises the reaction immediately. “I can’t tell you how many times I’ve had the partner of a surrogate say, ‘But why? I’m not contributing eggs, I’m not contributing sperm, I’m certainly not carrying the pregnancy.’”

Beyond the bureaucratic frustration is genuine fear. Until the legal process is complete, the surrogate and her partner are the child’s legal parents. The intended parents are not. For everyone involved, that ambiguity can be a source of dread.

“The worry of the surrogate is that the intended parents are going to ditch her and she’s going to be stuck with this baby,” says Stewart. “The worry of the intended parents is, what if the surrogate decides to keep the baby?”

Caren sees this play out throughout her counselling sessions. “Even when you know each other really well and have a deep sense of trust, there can still be that thought that comes up occasionally. What if they change their mind? What if I do something that upsets them and they decide to keep the baby?”

She describes it as “a common undercurrent alongside times of excitement and hope”.

Legally, that fear isn’t entirely unfounded. “Surrogacy is not legally enforceable in New Zealand,” explains Caren. “The surrogate or the intending parents could withdraw from it, even once there's a pregnancy.”

Rebecca says the fear never took hold for her personally, because she trusted Tess and Dan completely, and felt no grief at handing their son Ziggy over, but she understands why others might feel differently. “If I was in a scenario where it had maybe gone south, and I knew there were no legalities and nothing to protect me, that definitely would have felt a bit different.”

What she does remember vividly is the chaos of the immediate aftermath. Ziggy was born on a Sunday in the early hours of the morning. Rebecca, who had complications during the birth, found herself sending emails from her hospital bed at 5am to relinquish legal rights.

“Because it was a Sunday, there were issues around getting things sorted,” she says. “There was a point where they weren’t going to let Tess and Dan leave the hospital with the baby, and that came down to the timing of it. If it had been midweek, it probably would have been way easier.”

When the adoption order is finally granted, which is often months later, in a courtroom, Stewart says it’s often profoundly emotional. “I’ve seen judges crying happy tears. It’s a lovely ceremony, but the parents are crying not only because it’s a lovely moment. It’s also, ‘Thank God it’s finally over’. There’s the exhaustion of the whole process, the cost, the emotional drain. That order being granted at the end is just the final, final step.”

For Rebecca, the court appearance came around six months after Ziggy’s birth. “It was just a wildly insane scenario,” she says. “I give birth to someone’s biological child and they have to adopt it off me.”

New Zealand’s surrogacy laws have been overdue for reform for decades. A Member’s Bill incorporating Law Commission recommendations is now sitting before Parliament awaiting its second and third reading, but progress has been glacial.

“It’s Parliament time, basically,” says Stewart, who was one of the expert legal advisors to the review. “Whether it’s going to happen in this term, or roll over into a new political cycle, I honestly don’t know.”

It was former MP Tāmati Coffey, himself a father through surrogacy, who came closest to making it happen. He drafted the original Member’s Bill alongside Louisa Wall and gathered cross-party support, but it stalled on timetabling and, he believes, the cost of implementation. He left Parliament before seeing it over the line.

“I’m sad that we’re still kicking the can down the road. It shouldn’t have taken this long,” he says.

He also points to a glaring inequity where every professional in the process gets paid, except the surrogate.

“As it stands, women who do this need to do it for the love in their heart. But every other professional is clipping the ticket, and clipping big.”

Rebecca echoes this. Surrogates cannot be paid beyond tightly prescribed medical expenses, and costs like physiotherapy and dietary changes aren’t covered.

“Things like your diet changes, your body changes and legally they’re not allowed to reimburse you for any of it.”

It’s a barrier, she says, that deepens New Zealand’s already scarce surrogate pool.

“The law shouldn’t discriminate against children and impose hurdles and barriers because of the accident of their birth,” says Stewart. “Why push people through a court process just to be recognised as the parents of the child? It seems absurd.”

Tāmati wants the issue on party manifestos before the next election. His vision for what better looks like is simple.

“When you’ve got willing parties, the law just needs to fall into line.”

For Rebecca, her mission is to keep talking.

“I would never talk about surrogacy without telling one more person why it’s so messed up,” she says.

For the people who arrive at surrogacy after years of loss and heartbreak, she says it must be the worst of the worst. “And then you've got this. Just another thing.”