Improving Arrangements for Surrogacy Bill

I move, That the Improving Arrangements for Surrogacy Bill be now read a first time. I nominate the Health Committee to consider the bill.

This has been a long time coming. There are many people around Aotearoa who have been waiting for change in this little space. I want to acknowledge them as we move forward into what I believe, and many believe, is a very innovative and very refreshing step into the future when it comes to the laws around surrogacy here in New Zealand. I want to dedicate this to all of our surrogates. In te reo Māori, we call them kōpū whāngai, because they carry the children of the future and often on behalf of others that cannot carry babies for themselves.

This is not just a gay issue; it’s not just a straight issue, either. This is an issue for many New Zealanders who, for one reason or another, find it very hard, sometimes impossible, to be able to carry children themselves. Ever since I started on this journey, I’ve made sure that I’ve been telling people this journey is all about making modern laws for modern families. We’ve come a long way from the old nuclear family, the way that things used to be, or at least the way that television and the movies like to think families were portrayed, with mum, dad, and the two kids. These days, we have all kinds of families, and often when we have surrogates stepping into that role as well, the family gets extended just a little bit more.

So the goal is to create modern laws for our modern families and to make sure that this is a mana-enhancing process for our surrogates, for our intending parents, and for everybody that’s involved in this. I’d say, having had some lived experience in this area, that the law is currently not a mana-enhancing system. At the moment, we’ve got a couple of laws that have been cobbled together to try and solve the issues that we face in the world of surrogacy. They’re not fit for purpose, they are outdated, and today we start the journey of change.

When I’ve talked previously, in public settings and to anybody that wants to listen, about what surrogacy looks like and where my bill fits into this, I’m very quick to say that surrogacy issues are far and wide. In fact, I say there are this many issues [Holds hands in wide circular motion] that need to be dealt with in the area of surrogacy, and my bill deals with about this many of them [Holds hands in narrow circular motion]. But, still, it’s a start on a very long journey.

I want to talk very quickly about some of the parts of the bill that is before the House and some of the innovative changes that we’ve landed on. The first part of the bill talks about amending the Human Assisted Reproductive Technology Act 2004. The way that the law is currently structured, any surrogate that decides that they want to altruistically carry for another couple are only allowed, what they call, valuable consideration. It’s a very legal term, and for people that aren’t legal beagles, they sometimes get confused by that. But let me put it this way: it’s a way that we are able to maintain the sanctity of the previously held notion that commercial surrogacies aren’t exactly what we want here in Aotearoa, but a way that we might be able to provide something for the surrogate. Because it’s been so murky in the past, it’s been up for interpretation quite a bit, but there are hefty penalties for couples for arrangements that enter into any kind of commercial surrogacy arrangement.

So, with that in mind, the offer on the table, the proposal on the table, is to ensure that the surrogate isn’t out of pocket, ensure that if they choose to go into this arrangement, that, actually, they’re not left with expenses unpaid because of the law being in the way. Therefore, I propose the change through this legislation, the term “valuable consideration” into “actual and reasonable expenses”, so that the expenses that the surrogate has to incur as a result of her choosing to do this doesn’t leave her out of pocket. I think that’s fair and I think that’s reasonable.

Also, in Part 1 of the amendment bill is the idea of a surrogacy register. At the moment, if you want to find a surrogate, you’re forced to either go cap in hand to those people around you, sometimes your family; sometimes if they say no, your friends; and sometimes if they say no as well, online Facebook groups, which purport to match people up with surrogates who would like to carry for other couples. But I’d say that this is not the best way that we could do this. The creation of a surrogacy register that’s administered through the Ministry of Health would help to be able to sort that and bring looking for a surrogate into the light and help match up intending parents with those people who choose surrogacy as a pathway to be able to start their family.

Part 2 talks about court order—the ability for all parties that are stakeholders in the arrangement for the surrogacy to be able to go to a court well in advance of baby being born, and to be able to agree to the terms and conditions of a court order: a surrogacy order, if you will. What would happen in a surrogacy order is that, provided all parties agree, then on the time of birth the legal parentage of the child moves to that of the intending parents. The way that it is at the moment is fraught with difficulty. Sometimes intending parents can wait 10 days, sometimes longer, to be able to take parentage of their child. Often, as I’ve found in my engagement with so many people that have been through the surrogacy arrangement, it’s not an easy step for a surrogate to make to go through this, so the better you can clear up those terms and conditions up front and in the eyes of our courts, the better off it is for everybody—again, a mana-enhancing process.

I’d also hazard to say that if we had surrogacy orders in place at the moment, we wouldn’t, as a House, have had to have gone through the Paige Harris Birth Registration Bill, which is now an Act. But, unfortunately, in that situation, baby Paige’s mother had died in the process, and baby Paige’s mum was unable to be recorded on the birth certificate. Because of a surrogacy order, if that had have been agreed to earlier on, there would have been no problems with that. What I do also know is that there have been other cases that have come forward because of the gaps in our current laws.

Part 3 talks about amending the Status of Children Act 1969 to make sure that if the court order is approved, from birth the intending parents become the legal parents. Part 4 talks also about that too.

Part 6 is a very interesting area, because, actually, at the moment, and anybody that’s involved in adoption knows that when it comes to the birth of children, the old way of thinking—when the Adoption Act was drawn up in 1955—was that a clear cut needed to be made between a child that was being put up for adoption and their birth family. This is absolutely at odds with how we see the world these days, here, in the future, in 2022. The United Nations Convention on the Rights of the Child says that we need to honour the whakapapa, honour the DNA, of the children that are born, of every child that’s born. The idea of a clean cut is no longer part of the accepted thinking in this space. So it would therefore be acceptable for us to be able to record on the birth certificate in a surrogacy arrangement all of those parties that make up that surrogacy arrangement.

I believe that it’s for the good of our tamariki and our mokopuna to know exactly where they come from, and this is a really Te Ao Māori perspective on this as well. The ability to know your whakapapa, to be able to connect into your blood and your history, is everything, and every child that is born deserves the right to know that. This bill will also amend it so that birth certificates can be recorded appropriately for those people in surrogacy arrangements—again, creating a mana-enhancing process.

The thing that makes this bill slightly different is that the Law Commission have been undertaking a review. It was a Government intention to be able to do a review into the area of surrogacy, to be able to do a deep dive into all of the issues that we face in this area. I’d like to congratulate the New Zealand Law Commission for undertaking that work. They haven’t yet reported their work back, though, so as this goes to select committee, it goes knowing that the New Zealand Law Commission will very soon report their findings back, and there may be a will of the Government to be able to turn that into legislation.

As I said before, there are a lot of issues in the world of surrogacy, and this bill fixes just a few of them. I’m very open to the findings of the Law Commission report and look forward to seeing where they land and listening to some of their recommendations and whether or not we might be able to turn that into legislation—in which case, I’m open to the idea of my member’s bill being absolutely superseded by a strong piece of legislation informed by the work of the New Zealand Law Commission. That, of course, can be discussed in the Health Committee as we progress through this.

I want to finish with some acknowledgments—some acknowledgments to the people that helped this bill—

Order! The member’s time has expired. The question is that the motion be agreed to.

Thank you, Mr Speaker. Thank you for the opportunity to speak here on the Improving Arrangements for Surrogacy Bill. National supports this bill going through to its first reading—to go through to select committee. I’m a little bit surprised that the member has sent it to the Health Committee; we would have thought the Justice Committee would have been more appropriate. I encourage him to think about that—we’re obviously not going to have a chance to finish the first reading today—because, ultimately, it’s dealing with questions of law that I think are more appropriate in the justice area, but that’s a debate we can have.

So what we’re looking at here, obviously, is, I think, a widespread conclusion that our surrogacy laws are antiquated and not up to speed with modern practices and technology and the way that the world works. So the proposal here from Mr Coffey—particularly in relation to the development of a surrogacy order through the courts and then enabling that arrangement, that the intending parents automatically become the parents of the child and the surrogate ceases to be a parent of the child from the birth without going through the very complicated hoops that currently are under way. Then Part 4, providing that a person who is named as intending parent as a surrogacy order is also the parent for the purposes of the Care of Children Act—and therefore potentially liable for support if they change their mind. All these things are broadly sensible and worth the consideration of the select committee.

The issue, I suppose, that we have, and I was very glad to hear Mr Coffey at the end of his speech refer to the Law Commission report and the fact that the Government has asked for a thorough deep dive on what is an incredibly complicated issue from the Law Commission. It may well be—I’m not entirely sure that a member’s bill is the appropriate vehicle for dealing with the issue, given the complexity of it.

This bill has 32 clauses, it’s quite complicated, and requires very significant work from ministry officials and Government officials to look at all the cross-currents and permutations of every little change that is made, and a lot of resources being involved. The normal course of events with members’ bills is that a huge amount of resource isn’t necessarily thrown at it, and the risk is that we get something that is not well-thought-through.

So you’ve got the Law Commission going out there, looking at the issue, looking at the complexity of it—all these things such as when does guardianship crossover to parents? What is an appropriate financial arrangement? We’re certainly not in favour of commercialisation of surrogacy now that the member is talking about reasonable expenses. That is a very easy thing to say and a much more difficult thing to legislate in a way that doesn’t, in effect, lead to commercialisation; so exactly how that is handled is a quite delicate task. Then are the implications of all sorts of complications that occur in the natural course of life: of people changing minds, of the different aspects of surrogacy. The only point I’d make is that the logical thing to do would be—given that the Law Commission is in the middle of this work, and will be reporting back sometime soon this year, but we don’t know exactly when, it may well be that the sensible thing to do is to put this bill through the select committee, but make sure that the time for consideration and submissions is substantially extended so that it includes the Law Commission report and we’re not put in a situation where we have to put this bill through before the Law Commission report has come out, and we’ve had the ability to look at what it has to say and have the benefit of that advice. And it may well be that when that comes through, the Government itself decides that, actually, this is something that it wants to pick up and come up with Government legislation in the normal process, and that may well lead to a better outcome.

So it’s a fluid sort of situation. We certainly recognise that the current laws aren’t adequate and that they are over-burdensome and complicated for intending parents. So, you know, we have a huge empathy, I suppose, for the challenges that many New Zealanders who, for all manner of reasons, are not able to carry their own children and the desire to come up with arrangements that work for everybody. So there’s definitely a problem to be solved here. The question is how best to do it and to recognise just the incredible complication in this area, and let’s just go about this in a careful and considered way. When we do get the opportunity to see what the Law Commission has proposed and unearthed, we then can make a judgment as to whether this bill is one that could be tidied sufficiently to do the job or whether Mr Coffey, as he suggested, steps back and the Government itself steps into the breach. Either way, the National Party is very keen and concerned to work constructively on this bill for the benefit of all New Zealanders.

Like I say, I do think, just in conclusion—I don’t need to sort of extend it forever—I would call upon the member to reconsider, or at least perhaps engage with other members across the House as to the appropriateness of the select committee involved. We think it’s probably better suited for the Justice Committee to consider. Thank you, Mr Speaker.

Members, this debate is interrupted and set down for further consideration next members’ day. The House stands adjourned until 2 p.m.

The House adjourned at 12.59 p.m. (Thursday)