Surrogacy involves a woman (the surrogate) agreeing to become pregnant, and to carry and deliver a child for another person or couple who intend to raise the child from birth (the intending parents).
One of the biggest issues in surrogacy arrangements is that the law does not recognise the intended parents. The surrogate will be the birth parent for all purposes, and an individual or couple who use a surrogate will need to adopt the child to get parental rights, even if the egg/embryo was taken from one of them. Consent from any egg donor is not required for an adoption in a surrogacy situation.
This means that when a child is born by IVF to a surrogate mother in New Zealand or overseas, the intending parents must apply to adopt the child to become the child’s legal parents.
This is a new and complex area of law. The NZ Law Commission is currently looking at a new legal framework for surrogacy arrangements. If this is an area of law that affects you or you are interested in participating in the kōrero, you should contact the NZ Law Commission. If you require legal advice you should contact the community law centre or a lawyer.
Whāngai is an informal arrangement in accordance with tikanga Māori, where tamariki are cared for by members of the wider whānau, without a formal order from the court.
Formal orders from the court that recognise caregiving arrangements include a parenting order, adoption, or special guardianship.
A significant benefit of whāngai arrangements is that there is a continuing relationship between the birth and whāngai whānau, but while the court generally acknowledges whāngai arrangements, they are not legally recognised.
One exception to this is in the Māori Land Court, where whāngai relationships can be recognised for the purposes of inheritance to Māori land.
Mātua whāngai (whāngai parents) may also qualify as a “primary carer” with parental leave entitlements; for more information about Parental Leave Rights, see https://communitylaw.org.nz/community-law-manual/chapter-21-employment-conditions-and-protections/parental-leave/.
Adoption is the legal process where all the parenting rights and responsibilities of the birth parent/s are transferred to the adoptive parents.
The adoption process requires the parent/s to permanently give up their legal rights as a parent and the adoptive parents become the new parents. The new parents will have full and exclusive parental rights and responsibilities.
When an adoption order is made the child becomes the legal child of the adoptive parents as if they had given birth to him/her. It is a permanent legal arrangement.
Any person under the age of 20 can be adopted. They do not have to be living in New Zealand. The child’s consent is not required, but the Family Court must consider the child’s wishes (taking into account their age and level of understanding) when deciding whether the adoption would promote their welfare and best interests.
The Adoption Act 1955 identifies the people that can apply to adopt a child, including:
A natural parent and their spouse (a stepparent) can adopt a child jointly,
Adoption by family:
It is illegal to offer or accept payment for an adoption, but a person who has applied to adopt can pay the mother’s hospital and medical expenses in some cases. In the case of inter-country adoptions, adopting parents can also pay costs and expenses incurred by accredited New Zealand non-profit organisations.
It is illegal to place advertisements stating that there is a child up for adoption or that you want to adopt a child.
The child’s parents and guardians must consent to the adoption. But the father’s consent is not required if the mother is the child’s sole guardian (if the father does not agree to the adoption, he will need to file an application be recognised as the child’s legal parent or guardian).
Consent to adoption can only be given once the baby is at least 10 days old, and many birth parents take longer than that to decide. Once the consent form is signed, it's almost impossible to have the decision reversed.
If you want to adopt a child you generally have to go through Oranga Tamariki.
Adoption applications are made to the Family Court, and there’s a formal process involved. The Family Court must be satisfied that: