Surrogacy During COVID-19 Times: The New Zealand Experience

• Author: Debra Wilson
• Position: Associate Professor in Law, University of Canterbury
• Pages: 51-76

51

SURROGACY DURING COVID-19 TIMES:

THE NEW ZEALAND EXPERIENCE



Abstract

On 28 Februar y 2020 the f‌irst case of Covi d-19 was reported in New Zealan d. Within

a month, the New Zeala nd borders were cl osed to non-cit izens and reside nts. Other

jurisdict ions also took th is step, making i nternation al travel dic ult, if not impos sible.

For intended pare nts who had ente red into interna tional surro gacy arrangem ents, this

presented a sign if‌icant problem: they nee ded to travel overseas for the b irth of their child

and to bring the c hild home. As lo ckdowns and wo rk-from-home or ders became more

common, int ended parents foun d that they could not c omplete the requir ed administrati ve

tasks to bring t heir child back home t o New Zealand. is arti cle considers the unfo reseen

consequenc es of engaging in either inte rnational or domest ic surrogacy during th e global

pandemic. Foc ussing on the l egal issues ar ising from bord er closures and l ockdowns,

it discusses t he results of empi rical research c arried out on fam ily lawyers work ing on

surrogacy ca ses during thi s time, as well a s relevant Family Co urt decisio ns. As New

Zealand is cur rently in the process of consi dering surrogacy law re form (following a Law

Commissio n project and the dra wing of a Privat e Member’s Bill fro m the ballot), it is

important to le arn from the COVID-19 expe rience in order to future- proof our new law.

I. Introduction

On 28 Februar y 2020, the f‌irst c ase of COVID-19 was repor ted in New Zeala nd. By

14 March 20 20, the Government had i mposed a requirement of 1 4 days self-isolation

for any person enter ing the countr y (except for those arrivi ng from the Pacif‌ic) and

by 19 March 2020 , borders were closed to a ll but New Zea land citiz ens and Perma nent

Residents. Th is border closure occur red mere days after ot her countries had ta ken

this st ep, and the EU had closed it s borders to all non-es sential travel.1

It was not long before repor ts emerged of COVID-19-related problem s for those

engagi ng in inter national s urrogacy. News s tories hig hlight ed increasi ng dicu lties

1 For a timeli ne on COVID-19 restric tions and alert lev els in New Zealand , see: Caroline Ka ntis,

Samant ha Kier nan and Ja son Socrat es Bardi “ UPDATED: Ti meline of t he Coronavi rus” (29

November 2021) T hink Globa l Health >.

* Dr Debra W ilson , Associ ate Profe ssor in Law, Un iversit y of Cant erbur y.

52 [Vol 28, 2021]

for intended par ents, both in travell ing for the bir th of their child and i n carrying

out the admi nistrati ve steps require d before they could retu rn to New Zeala nd with

their chi ld.

This ar ticle wil l identif y and consider some of t he issues ar ising in b oth

internat ional a nd domestic sur rogacy due t o the eects of Cov id-19. Relevant

informat ion will b e sourced from r eported jud gments, applic ations to EC ART and

from a sur vey of New Zealand fami ly lawyers reporti ng their experiences worki ng

with int ended parents. The lessons th at can be taken from t his challengin g period

of time may be of us e in shaping the fut ure law as New Zeala nd begins a process of

considerin g surrogacy law refor m.

II. A Brief Introduction to Surrogacy

A surrog acy arrangement involve s a woman (the surrogat e) agreein g to gestate

and give bir th to a child, who w ill then be rai sed by another person(s) (the int ended

parent(s)). In a gest ational s urrogac y, the surrog ate has no genet ic relationsh ip to

the child , with the eggs com ing from an int ended parent or a donor. In a tradi tional

surrog acy, the surrogate’s eggs a re used, and she is th erefore genetically relat ed to

the child . Under New Zealand law, the su rrogate (and her par tner if they consent ed

to the sur rogacy) are the lega l parents of the child, a nd the intended parent s must

adopt the chi ld to have legal parent age transfer red to them.

In an int ernational su rrogacy arr angement, the su rrogate and i ntended parents

live in di erent countr ies. The agreement m ight be faci litat ed by a thir d part y

(surrogac y agency or broker) or the i ntended pare nts might h ave a pre-exist ing

relationsh ip with the surrog ate and simpl y live in di erent jurisd ictions. This can

be contras ted wit h a domestic sur rogacy a rrangement , where both t he intended

parents a nd surrogate li ve in New Zealand.

Domestic com mercial su rrogacy, where t he surrogat e is paid for act ing as a

surrog ate (or potentia lly is rei mbursed for exp enses) is a crim inal oenc e in New

Zeala nd under the Human Assi sted Reproductive Tech nology Act 2004 (HART Act).

Since the Act do es not have extr a-territ orial eect , this pr ohibition on pay ment

does not extend t o internationa l arrangement s.

A domestic gest ational s urrogac y arra ngement requi res the assi stance

of a fertil ity clin ic (since the su rrogat e’s eggs are not us ed, the embr yo must be

created in v itro and t hen tran sferred int o the surr ogate th rough IV F), and it is a

crimi nal oence for the fer tilit y clin ic to act wit hout prior approva l of the Eth ics

Commit tee on Assisted Repro ductive Technology (ECA RT). A traditional s urrogacy