Re Addoption by B W S and A D-M S

JurisdictionNew Zealand
Judgment Date15 February 2011
CourtFamily Court
Docket NumberFAM-2009-044-002491
Date15 February 2011

In the Matter of the Adoption Act 1955

And In the Matter of an application by B W S to adopt a child

And In the Matter of an application by A D-M S to adopt a child



Applications to adopt two children (boy and girl) by males in a civil union — applicants were United States citizens with New Zealand residency — applicants had children through a surrogate in America — each was the biological father of one of the children — whether the Adoption (Intercountry) Act 1997 applied — whether special circumstances existed to justify the adoption of a female child by a male applicant — whether payment for surrogacy breached s25 Adoption Act 1955 (prohibition of payments in consideration of adoption) — whether immigration benefits prevented the making of an order


W Galvin For The Applicants

D Foong for the Ministry of Social Development

A Ashmore as Counsel to Assist



These proceedings relate to two applications for adoption by Dr S and Mr S in respect to two children.


At the hearing before me on 18 November 2010 I stated at the conclusion of hearing submissions that, given the children are now living in New Zealand with the applicants and that their immigrant status is still temporary, orders should be made orally.


Accordingly I made final adoption orders in respect to both applicants with the support of Counsel.


I reserved however my reasons for the decisions. In the preparation of the written reasons I acknowledge and thank Research Counsel, Catherine Helm, of the North Shore District Court for her input into the complexities and emerging jurisprudence related to these issues.


The applications have been dealt with together because, other than the names of the Applicants and the children, they are identical in nature. The two Applicants, A D-M S and B W S, are partners in a civil union.


Both Applicants are citizens of the United States of America but have New Zealand residency. Dr S has employment in New Zealand as a psychiatrist and Mr S takes care of the home and children.


The Applicants have been in a relationship since 2001, and were joined in a civil union in New Zealand on 14 February 2007.


While the parties were living in the United States in 2008, they arranged to try and have children through surrogacy with the help of a fertility clinic in Oregon. A mutual friend of the Applicants agreed to be the surrogate mother, and the Applicants entered into an agreement with an egg donor. The egg donor's identity is unknown, and the agreement between the parties and the egg donor provides that the parties will remain anonymous and that there shall be no future contact between them.


The two eggs, one fertilised by each Applicant, were implanted into the surrogate mother and on 7 March 2010 the two children who the subject of these proceedings, L M S-S (the child of B W S) and R B S-S (the child of A D-M S), were born.


On 12 February 2010, prior to the children's birth, the Superior Court of California made an order declaring the Applicants to both be the legal parents of the children and the birth certificate of each child reflects this.


The applications to adopt were filed in the North Shore Court on 4 December 2009, prior to the children's birth.


The presiding Judge made a direction that Counsel was to file a memorandum addressing the issue of jurisdiction to file the application prior to the birth. This was subsequently filed and the applications were accepted. The registrar was directed to obtain a s 10 report from Child, Youth and Family. That report was made available to the Court and is dated 23 July 2010. The s 10 report was filed on 27 July 2010 and at the same time the Court was provided by the Ministry of Social Development with a report from the New Zealand Central Authority pursuant to s 3 of the Adoption Act 1955.


Counsel to Assist was appointed in July and provided a report to the Court on 24 August 2010. The Ministry of Social Development has also been joined as a party and Counsel for the Ministry also made submissions.


Present at the hearing were both the Applicants and the two children, who are living in New Zealand and have been for some time. The children are the subject of temporary visas.

The reason for an adoption order

The Applicants' reason for seeking to adopt their children in New Zealand is that this appears to be the only way the New Zealand Immigration Authorities are prepared to allow the children to remain in New Zealand unless there is approval from the New Zealand Central Authority (NZCA). I was advised that the children are currently here on a 12—month temporary visa.


Although the s10 reports provided by Child, Youth and Family are extremely favourable as to the suitability of Dr S and Mr S as adoptive parents, the NZCA have not been prepared to approve the children's immigration into New Zealand.

Issues to be determined

Ms Galvin as Counsel for the Applicants identified the following issues as requiring determination:

  • a) Whether the Adoption (Intercountry) Act 1997 applies to these children.

  • b) Whether the egg donor is required to give her consent to the adoption.

  • c) Whether the Applicants are fit and proper persons to parent the children.

  • d) Whether s 25 of the Adoption Act has been breached.

  • e) Whether the children's welfare and best interests would be promoted by the making of an adoption order.


In addition there is a question of whether special circumstances justify Dr S's adoption of L, given the general prohibition on a male adopting a female child. Adoption orders are ultimately made at the Court's discretion and, in considering whether to exercise that discretion in this case, I will also consider some of the policy issues surrounding assisted reproduction in New Zealand.


Subsequent to the filing of initial proceedings there have also been filed in the Court the consents of Dr S and Mr S to the making of a consent order as natural parents, as well as two affidavits filed by a legal secretary from Ms Galvin's office attaching original DNA test results in respect to both parties. The results indicate that, in respect to Mr S the probability of his paternity of R is 99.99998 percent, and in respect to Dr S there is a similar probability of 99.99998 percent in respect to his paternity of L M.


The hearing proceeded by way of the submissions by Counsel for the Applicants, Ms Galvin. Submissions were made by Mr Foong on behalf of the Ministry of Social Development, and by Mr Ashmore as Counsel to Assist.


Adoption (Intercountry) Act 1997

Submissions of the Applicants

It is the position of the Applicants that the Adoption (Intercountry) Act 1997 does not apply to the applications and these children. The Applicants are the natural parents of the children and under law of their country of citizenship, the United States of America, they are the legal parents of both children pursuant to an order made in the Californian Court on 2 February 2010.


It is Ms Galvin's position that the Adoption (Intercountry) Act brings the Hague Convention into operation in New Zealand domestic law. Article 2 specifies that the Convention applies:

Where a child who is habitually resident in one contracting state (“the state of origin”) has been, is being, or is to be moved to another contracting state (“a receiving state”) either after his or her adoption in the state of origin by spouses or a person habitually resident in the receiving state, or for the purposes of such an adopting in the receiving state or in the state of origin.


It is submitted by Ms Galvin that the children were not habitually resident in the state of origin (i.e. the United States) and it was always the intention following the birth that they would come to New Zealand with the Applicants.


She refers to the Court of Appeal decision of Punter v Secretary for Justice 1 which set out the principles to be considered in determining habitual residence.


Ms Galvin goes on to refer to the decision of Re KGB v LRB 2 where the Court found that the matters relevant to an adoption case can be said to be:

  • i) Any enquiry into habitual residence remains a factual one, so that any principles cannot be applied rigidly;

  • ii) An important concept of ascertaining habitual residence is that of settled purpose. If a person has a settled purpose to leave the place of his or her habitual residence and does so in accordance with that purpose then the former habitual residence is lost immediately. The new place will only become habitual residence, however, if there is a settled purpose to take up the place as an habitual residence and reside there for an appreciable period of time. ( Punter at paragraph [66]).

  • iii) It is not easy to apply the concept of settled purpose where young children are involved… The settled purpose of a young child is necessarily that of a parent or the person or persons able to exercise the right to determine where the child should reside ( Punter [70])


Ms Galvin refers to the fact that under the United States law the Applicants were able to exercise the right to decide where the children should live; in fact they were the only persons with legal right to do so. She notes that the Applicants both had a settled purpose to leave the United States once the children were born and reside in New Zealand for an appreciable period of time.


She submits further that the reason for the children being brought to New Zealand was not “for the purposes of such an adoption”. The reason for the children being brought to...

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