The Health Select Committee has now reported back on the Improving Arrangements for Surrogacy Bill. Overall, the Bill represents a significant improvement, and many of NCWNZ’s concerns, outlined in our submission on 16 September 2024 (.pdf file, S24.15, on the NCWNZ website), have been addressed in some form. In particular, the strengthening of the rights and interests of children born through surrogacy is welcome. However, protections for surrogate mothers have been addressed less comprehensively.
Below is a series of topics that need further attention.
1. Primacy of the child’s interests
NCWNZ recommended amending the HART Act 2004 to explicitly state that the child’s interests are paramount. While this was not adopted directly, the Committee strengthened child‑centred safeguards, including:
- mandatory Oranga Tamariki reports for all surrogacy approval applications;
- expanded ECART powers to cancel approvals where conditions are not met;
- confirmation that courts must consider the Verona Principles when determining the child’s best interests; and,
- amendments to citizenship law to ensure surrogate‑born children retain New Zealand citizenship by birth.
2. Use of the term 'surrogate mother'
NCWNZ recommended consistent use of the term 'surrogate mother' to properly reflect women’s reproductive rights, health and wellbeing, and power imbalances. This recommendation was not addressed.
3. Representation of surrogate mothers
NCWNZ sought representation for surrogate mothers on ECART and related committees. While the Bill now requires at least two members to advocate for the child, it does not provide for advocacy for surrogate mothers.
4. Cultural and disability perspectives
NCWNZ recommended the inclusion or co‑option of expertise where surrogacy involves Pasifika peoples, other non‑European cultures, or disability. This was not addressed, which is disappointing.
5. Traditional surrogacy arrangements
The Committee partially addressed NCWNZ’s recommendation that parties to traditional surrogacy arrangements be encouraged to enter into Surrogacy Arrangements and participate in the ECART approval process. A new provision requires ECART approval for all clinic‑assisted traditional surrogacy arrangements and allows such arrangements to apply directly to ECART, rather than through a clinic.
6. Incest laws and surrogate‑born children
NCWNZ recommended that children born through surrogacy be subject to the same incest laws as set out in the Crimes Act 1961. The Committee was divided and ultimately adopted stricter provisions, extending prohibited familial relationships to include those that existed before, and resulted from, parentage transfer. This would prevent a surrogate‑born person from entering into a marriage or civil union with the surrogate or members of the surrogate’s family, even when they are not genetically linked and were raised in different families. Whether the Committee has got the issues of power imbalances and the integrity of the family unit right is likely to be debated further.
7. Protection of surrogate mothers
The Bill strengthens some protections for surrogate mothers, including enforceable reimbursement of reasonable costs and clarification of tax treatment. However, paid parental leave remains unresolved. The Committee viewed the current entitlement of 26 weeks for both the surrogate mother and adoptive parent as 'double dipping' and suggested an alternative model of 14 weeks for recovery and 14 weeks for bonding. This issue will require further consideration.
8. Registers, consent, and remaining gaps
The Committee did not support the establishment of a national register but introduced new requirements for the Registrar‑General to record identity information alongside, but not on, the birth record of a surrogate‑born child. This includes details about the nature of the relationship between the surrogate and the intended parents, and requires the
Registrar‑General to provide access to this information if requested by the surrogate‑born person.
The Committee did not support a specific mechanism for proactively alerting surrogate‑born people to the existence of their surrogacy information. Instead, when providing birth information, the Registrar‑General must notify the person that restricted surrogacy information exists and explain how it can be accessed.
9. Sufficient time for surrogate mothers to (re)consider consent
Protections for surrogate mothers have been strengthened through the introduction of a standard statutory declaration form, to be witnessed by an independent lawyer. Consent will not be valid if given before the child is seven days old, and the lawyer must certify that the implications of consent have been explained.
10. Other outstanding issues
Several NCWNZ recommendations were not addressed or only partially addressed, including:
- equal rights of access to information for surrogate mothers (not addressed and remains a serious flaw in the Bill);
- mandatory appointment of a lawyer for a child subject to a Parentage Order (partially addressed through Oranga Tamariki reports and discretionary legal appointments);
- enforcement mechanisms for Parentage Orders and planning for worst‑case scenarios (not specifically addressed, though limited additional provisions apply in rare cases);
- child support obligations where intending parents refuse legal custody; and,
- the provision of comprehensive, accessible information for surrogate mothers, intending parents, and employers in multiple languages and formats.
Thanks to members who have contributed to our ongoing advocacy on this important issue, including sharing your views through the Action Item process.
To read more articles from The Circular (March-April 2026) issue 656, click on the tag below.