Who's bringing up baby: Developing a framework for the transfer of legal parenthood in surrogacy arrangements

Surrogacy arrangements defy traditional definitions of parenthood and pose challenges in determining who should be recognised as legal parents. This is exacerbated by the use of assisted reproductive techniques which allow for the separation of genetic, gestational and intentional parenthood, creating questions about the comparative value of these contributions. This paper identifies that New Zealand legislation dealing with parentage in surrogacy, primarily the Adoption Act 1955 and the Status of Children Act 1969, never contemplated surrogacy arrangements and requires strained interpretation to avoid perverse results. The paper critiques two proposals for reform: the Law Commission’s recommendations in the 2005 New Issues in Legal Parenthood Report, and the framework suggested in the Care of Children (Adoption and Surrogacy Law Reform) Amendment Bill. This paper concludes that the proposed Amendment Bill shows promise, however should incorporate the Law Commission’s 2005 recommendations to provide a truly comprehensive framework. This framework should focus on giving effect to the intentions of parties to a surrogacy arrangement, while ensuring the interests of the surrogate are protected and the arrangement is carried out in accordance with recognised ethical principles. It is additionally important that children have an opportunity to know their genetic and/or biological background.