Adoption – Domestic in-vitro fertilisation (IVF) surrogacy adoption

Tamariki born from IVF surrogacy have a right to be aware of their genetic origins and to be able to access information about those origins.

The Human Assisted Reproductive Technology Act 2004 (HART Act) regulates IVF surrogacy in New Zealand. The central principle of the HART Act is that the health and wellbeing of tamariki born as a result of an assisted reproductive procedure is an important consideration in all decisions about that procedure.

This information relates to intending parents who are choosing to adopt a tamaiti born by IVF surrogacy that is facilitated through a fertility clinic.

It does not apply to:

• ‘traditional’ surrogacy, where a woman agrees to have her own egg fertilised with the sperm of the intending father by sexual intercourse, self-insemination or medical intervention, with the intention that the resulting tamaiti will be raised by the genetic father and (usually) his partner – in these circumstances, follow the guidance for domestic adoption
• proposals for commissioned international surrogacy arrangements that will occur outside of New Zealand.

ECART follow guidelines set by the Advisory Committee on Assisted Reproductive Technology (ACART).

Intending parents who apply to ECART are required to have a plan to establish legal security and identity for te tamaiti born as a result of the IVF surrogacy.

Adoption provides a legal statement of identity for te tamaiti and, under current legislation, is the only way to provide te tamaiti with a birth certificate that does not retain the surrogate parent’s name.

ECART website

ACART website

Intending parents may apply for a parenting order under the Care of Children Act 2004. However, an order under the Care of Children Act will not provide the child with a legal statement of identity from their new family, as adoption does.
Care of Children Act 2004

We follow the caregiver and adoptive applicants' assessment and approval process to complete a preliminary assessment of the intending parents’ suitability to care.

Policy: Caregiver and adoptive applicant assessment and approval

1. Applicants complete the documentation

We provide intending parents with an adoption application pack, which includes medical reports, 2 references, police checks (including overseas police checks if appropriate), and authorisation for CYRAS and TRIM checks.

Intending parents applying for IVF surrogacy adoption are not required to:

• attend Adoption in Aotearoa training
• prepare a profile.

2. Plan for and undertake home visit with the applicants

At the home visit, we explain why we are required to complete the preliminary assessment.

We build understanding of the circumstances of the proposed surrogacy:

• whose gametes (eggs and sperm) are involved
• the intending parents’ relationship to the proposed IVF surrogate (and partner, if applicable)
• both parties’ intentions for the care of te tamaiti after the birth.

We also indicate our responsibility to explore their plan to address the rights and interests of te tamaiti around future access to genetic identity information.

Purposes – section 3(f) of the Human Assisted Reproductive Technology Act 2004

Principles – section 4(e) of the Human Assisted Reproductive Technology Act 2004

When we've established the relationships involved, we discuss:

• the requirement for a full assessment in the event of a successful pregnancy
• the need for confirmation from the fertility clinic of the relationships between the parties and te tamaiti
• the implications of section 6 of the Adoption Act 1955 and what options exist for them to consider taking te tamaiti into their care after the birth but before consents to adoption have been signed
• the implications of sections 10 and 11 of the Adoption Act that require a social worker to report to the Family Court on their adoption application, and the court’s responsibility to determine that:
  • they are ‘fit and proper’ to adopt a tamaiti
  • the welfare and interests of te tamaiti will be promoted by the adoption
  • any religious condition will be complied with.

Restrictions on placing or keeping a child in a home for adoption – section 6 of the Adoption Act 1955

Social worker to report – section 10 of the Adoption Act 1955

Restrictions on making of orders in respect of adoption – section 11 of the Adoption Act 1955

We also explore any questions or issues that have arisen from the documentary checks completed.

3. Make a recommendation

We complete our preliminary assessment of the information gathered through the documentary checks and the home visit interview.

Where we consider that the applicants satisfy the section 10 criteria, we complete:

• the ‘gestational surrogacy interim assessment’ template on CYRAS and get it approved by our supervisor
• the ‘surrogacy letter for ECART’ template on CYRAS and send this to the intending parents.

ECART requires that all applications for IVF surrogacy are anonymous, but we address the letter to the intending parents in the usual way – it's their responsibility to delete identifying details and give the letter to their counsellor so it can be included with their application to ECART.

If we can't make a positive recommendation

If we find evidence of serious risk to the wellbeing of a potential tamaiti to be born of the intending parents’ gametes and raised by them, we follow the procedures outlined in the caregiver and adoptive applicant assessment and approval policy.

Policy: Caregiver and adoptive applicant assessment and approval

1. Meet with the intending parents again

We meet with the intending parents again:

• before the baby is born, and
• once the intended parents have provided a letter from the fertility clinic that confirms the pregnancy and the genetic relationship.

2. Complete a full adoptive applicant assessment

We follow the caregiver and adoptive applicants' assessment and approval process to assess and approve the intending parents as fit and proper to adopt te tamaiti.

This supports us to determine the intending parents’ suitability and eligibility to adopt through satisfying the criteria set out at section 10 of the Adoption Act.

Social worker to report – section 10 of the Adoption Act 1955

Policy: Caregiver and adoptive applicant assessment and approval

When completing an assessment for an IVF surrogacy adoption, keep in mind that the adoption proposal may be for intending parents to raise their own tamaiti carried to birth on their behalf by a close relative or friend and tailor the assessment accordingly. 

Intending parents and the IVF surrogate and partner (if applicable) will have considered through joint fertility clinic counselling the long-term identity needs of te tamaiti – from attachment at birth to knowledge of the circumstances of their conception and genetic origins.

We explore the applicants’ thinking about these issues and the sort of agreements that have been reached between the parties.

We should be clear that tamariki born as a result of in-vitro surrogacy have a right to know about their origins and to be able to access information about those origins.

Less commonly, one gamete is donated and/or the IVF surrogate is not well known to the intending parents, or the pregnancy may result from embryo donation and there is no genetic connection between te tamaiti and the intending parents. In these circumstances, social workers may want to spend more time exploring the identity needs of te tamaiti and the plans to promote attachment.

Given the counselling and planning the parties undertake at the fertility clinic, our assessment should focus on: 

• analysing the information provided by the Police and CYRAS checks, medical reports and references
• finding out if the intending parents’ circumstances have changed since the preliminary assessment 
• exploring the attachment, belonging, wellbeing and identity of te tamaiti relevant to the surrogacy situation, and how the intending parents plan to share the conception story of te tamaiti as well as the importance of openness in the surrogacy arrangement so that te tamaiti grows up knowing their identity.

3. Recording the application and assessment

An adoption file and a CYRAS record are created in the usual way for IVF surrogacy adoption applications. The social worker records the initial assessment (that supports the letter provided to ECART regarding the intending parents’ suitability to adopt) in a comprehensive casenote, and refers it to the supervisor, requesting approval.

Although approval may be given to the casenote, the applicants’ Adoption Status should remain as ‘pending approval’ to distinguish their application from those in the local adoptive applicant pool.

Because applicants for IVF surrogacy adoption undertake a limited preliminary assessment, they will not be recorded as ‘approved’ in CYRAS until the full process has been completed. An assessment casenote will be completed and approved in the normal manner once the applicants return before the birth, their situation is brought up to date, and they provide a letter from their doctor at the fertility clinic.

Supervisors may close the application after the preliminary assessment and re-open it again as appropriate.

In direct applications to the court, Oranga Tamariki Adoption Service usually contacts birthparents where possible, to ascertain their opinions for inclusion in the court report.

It is helpful for a social worker to meet with the IVF surrogate in person to find out their views on the proposal and talk over the adoption process. However, bearing in mind the work that has been done with the counsellor at the fertility clinic, they can choose not to meet, and a telephone call may be more appropriate.

However, it is necessary for the IVF surrogate to understand the options for the care of te tamaiti once born.

Where they are not a relative of the intending parents (within the meaning of section 2 of the Adoption Act – that is, a sister or sister-in-law of either applicant) and they want te tamaiti to go into the intending parents’ care directly after the birth and before consent can be signed, they will need to provide confirmation of their wishes both before and after the birth.

Interpretation – section 2 of the Adoption Act 1955

The IVF surrogate may do this in person or in a letter from the solicitor who has advised them during the IVF surrogacy arrangement and will be taking their consent to the adoption.

A copy of the statement of intent that the parties have drawn up may be included as confirmation of their wishes.

Status of Children Act 1969

Section 6 of the Adoption Act 1955 requires that:

• intending parents may have the status of relative as defined in section 2 of the Adoption Act (a sister or sister-in-law of either applicant), in which case they may take te tamaiti into their care with the mother’s agreement
• if the intending parents are not relatives as defined, a social worker’s prior approval is required before they can lawfully take te tamaiti into their home for the purpose of adoption.

Interpretation – section 2 of the Adoption Act 1955

Restrictions on placing or keeping a child in a home for adoption – section 6 of the Adoption Act 1955

The Adoption Act 1955 gives no indication of when prior social work approval may be given.

In an IVF gestational surrogacy in which te tamaiti has been conceived with the specific intention of being raised by intending parents, the situation may be considered to be different. The parties have produced a statement of intent concerning the permanent care of te tamaiti, which was approved by ECART before the child was conceived. While this statement could not legally bind the IVF surrogate to consent to the adoption, it is a clear indication of the consideration they have given to the intending parents’ parenthood being legally complete and represented on the birth certificate.

It is usual for both parties to want te tamaiti to be cared for by their intending parents – who likely have a genetic link with te tamaiti – directly after the birth.

A social worker may consider issuing approval for te tamaiti to be cared for by the intending parents before the signing of consent given that:

• the IVF surrogate makes contact, in person or through her solicitor, before the birth, to indicate their wish for te tamaiti to be cared for by the intending parents before her consent to adoption
• the IVF surrogate confirms to the social worker after the birth the details of te tamaiti necessary for the issuing of social worker placement approval, specifically:
  • name (as it will be registered)
  • sex
  • place of birth
  • date of birth.

If these conditions have been satisfied, the social worker can verbally approve the child being cared for by the intending parents and forward the social worker placement approval to their solicitor on the next working day following the birth. The approval remains valid for 28 days from the date of issue.

A casenote should be placed in CYRAS detailing the reasons why an early social worker placement approval was given.

Where the IVF surrogate is a relative (sister or sister-in-law) of either intending parents, a social work approval is not required for a lawful placement under sections 2 and 6(4)(d) of the Adoption Act.

Interpretation – section 2 of the Adoption Act 1955

Restrictions on placing or keeping a child in a home for adoption – section 6 of the Adoption Act 1955

Policy: Adoption – Facilitating an adoption placement

Guidance: Social worker approval for placement of te tamaiti in adoptive home

Our court report should clearly record the circumstances of the IVF surrogacy, basic information about the intending parents’ assessment and their current circumstances and the wellbeing and developing attachment of te tamaiti through a home visit.

Unless there are specific reasons for recommending an interim adoption order, we recommend the granting of a final order of adoption if we’ve assessed and approved the intending parents as eligible and suitable to adopt te tamaiti, and we’ve issued a placement approval.

Consideration should be given to recommending that the report be released to the applicants so te tamaiti has access to their story.

Guidance: The social worker's report on the adoption court application