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

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



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


W Galvin For The Applicants

D Foong for the Ministry of Social Development

A Ashmore as Counsel to Assist

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

Held: The issues were:

  • 1. whether the Adoption (Intercountry) Act 1997 applied;

  • 2. whether the egg donor was required to give consent;

  • 3. whether payment for surrogacy breached s25 AA (prohibition of payments in consideration of adoption);

  • 4. whether special circumstances existed under s4(2) Adoption Act 1995 (“AA”) (restrictions on making adoption orders) to justify the adoption of a female child by a male applicant; and

  • 5. whether the requirements of the Adoption Act 1995 (“AA”) had been satisfied — whether the applicants fit and proper persons to adopt and whether the adoptions were in the best interests of the children.

(1) The applicants had always intended to return to New Zealand, where they were habitually resident. Accordingly, the children's habitual residence was not and had never been the United States of America. Rather than find the children had no habitual residence, cases supported the view that they were party to the intention of their parents whose habitual residence was New Zealand. Given the declaration of the Californian Court, the intention to reside in New Zealand and the actuality of the children being in New Zealand, the Adoption (Intercountry) Act did not apply.

(2) Section 7(2) AA required the consent of the child's parents and guardians. Although there was a declaration from a Californian Court of competent jurisdiction that the Applicants were the legal parents, there was no evidence as to the relevant Californian legislation or its effect. Following Mount Cook (Northland) Ltd v Swedish Motors Ltd, New Zealand legislation is presumed to apply. That would mean that the status of the children was determined by the Status of Children Act 1969. On either view the necessary consents for adoption had been obtained.

(3) There had been no breach of s25 AA. It was contrived to say that payment that had been made in consideration of the adoption of the children, as opposed to the surrogacy and the costs associated with pregnancy. As the legal partners of the children, the applicants had never intended or expected to adopt L and R. A breach of s25 AA would not necessarily prevent the adoption proceedings.

(4) Section 4(2) AA appeared to have been enacted in an attempt to protect female children from sexual abuse. Society now recognises many legitimate forms of parenting that depart from traditional paradigms. The Family Court Judge accepted that special circumstances are more likely to be found where there is an existing family relationship. Special circumstances existed under s4(2) AA to justify Dr S's adoption of L — a female child. Dr S had provided DNA results which established with 99.9998% certainty he was L's genetic father. L would grow up with her biological family and had lived with Dr S since birth.

(5) There was no dispute that the applicants were fit and proper persons to raise the children. The adoptions were in the best interests of the children. Existence of immigration benefits did not in itself prohibit the making of an order, provided there were ancillary benefits flowing from the order which were independent of immigration. The orders would enable the twins to be brought up together with their biological fathers. The surrogate had firmly indicated she did not wish to parent the children.

The decision raised raised complex issues regarding surrogacy and gamete donation. For several reasons the surrogacy arrangement could not have occurred in New Zealand, as it did not comply with the Human Assisted Reproductive Technology Act 2004 (“HART Act”). Further, in spite of calls for reform, the Advisory Committee on Assisted Reproductive Technology (ACART) has not yet been prepared to allow male couples to enter surrogacy arrangements.

Applications allowed.



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.



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