In-vitro fertilisation (IVF) surrogacy adoption
Updated: 20 September 2018
Children born as a result of in-vitro fertilisation procedures have a right to know about their origins and to be able to access information about those origins. Under New Zealand law the surrogate (and partner) are recognised as the legal parents of the child. In order for the intending parents to be recognised as the child’s legal parents they will need to apply to adopt the child.
What is IVF surrogacy?
In-Vitro Fertilisation (IVF) surrogacy adoption
Why is adoption involved?
Intending parents seeking approval of their surrogacy proposal from the Ethics Committee on Assisted Reproductive Technology (ECART) are required to have a plan to establish legal security for the child born as a result of the procedure. They may choose to adopt the child or they may apply for a parenting order under the Care of Children Act 2004.
An order under the Care of Children Act will not provide the child with a legal statement of identity in the new family, as adoption does.
If the intending parents plan to adopt the child, ECART requires them to include in their application a letter from Oranga Tamariki to the effect that they would be considered suitable to adopt a child born as a result of surrogacy.
Under current legislation, adoption is the only way to provide a child with a birth certificate which does not retain the surrogate parent/s’ name/s.
This document does not apply to what may be termed ‘traditional surrogacy’ in which 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 child will be raised by the genetic father and usually his partner. In these situations refer to the general guidelines on adoption, in which a woman may consent to the adoption of her own genetic child.
This document does not apply to commissioned international surrogacy arrangements.
In the case of an adoption as a result of IVF surrogacy, the usual process of assessment for adoption by Oranga Tamariki is amended as follows:
Preliminary assessment process
1) Intended parents contact their local Adoption Service advising that a letter is required for ECART
2) An application pack is sent out
3) Applicants complete police checks (including overseas police checks if needed), medicals, references x2 and authorisation form for TRIM and CYRAS checks. Please note the applicants do not need to complete the Ways to Care training
4) Home visit appointment to see applicants is completed (see section 'What to discuss in preliminary assessment' below)
5) Complete template 'Gestational Surrogacy Interim Assessment' template on CYRAS. Also complete 'special considerations' casenote and seek manager approval if needed. Note do not complete the carer assessment screen
6) If preliminary assessment is satisfactory, complete 'Surrogacy letter for ECART' template letter on CYRAS, which the social worker sends to applicants as part of their documentation to go to ECART
7) The case then goes on hold until applicants advise that the surrogate is pregnant and provides estimated birth date
What to discuss for preliminary assessment
- It is important to discuss the proposal with the applicants (how did it come about)
- Gain information about the surrogate (and partner)
- Explain section 6 of the Adoption Act 1955 and the potential to issue social workers placement approval early
- Discuss any concerns from the documentation
Should the application to ECART be approved and the surrogacy proceeds, considerable time may have elapsed since the preliminary assessment. You will need to meet again with the intending parents before the birth of the child, to carry out the full assessment. The child is now a reality and plans with the surrogate parent/s are likely to have matured and become more specific. If the applicants’ circumstances have changed the information provided to the court must be current and relevant.
Assessing applicants once surrogate is pregnant
Social workers should keep in mind that the proposal is for parents to raise their own children often carried to birth on their behalf by a close relative or friend. With this in mind, tailor the assessment accordingly looking at the six core needs of a child.
- As the preliminary assessment has been completed, this information can inform the 'safety' section along with a home safety check. The home safety check should focus on safe sleeping arrangements for baby and obvious safety such as fire alarms.
- The social worker should focus on how the intending parents are building an attachment with the child pre-birth and plan to build attachment post-birth. Gaining a brief history of the intending parents' childhood can demonstrate how they have already built secure relationships and how this can be transferred to their child.
- Discuss how the intending parents plan on telling the child their conception story and the value of openness in the surrogacy arrangement so that the child grows up knowing their identity.
The information from this assessment is to be used in preparing the section 10 report to the Family Court.
When a positive recommendation cannot be made
Regardless of the parent–child relationship, should you find evidence of serious risk to the well-being of a potential child to be born of the intending parents’ gametes and raised by them, similar procedures should be followed to those outlined in the caregiver assessment and approval policy
Contact with surrogate parents
The Adoption Act 1955 does not specify any services to be provided specifically to birthparents. In direct applications to the court, the report writer normally contacts birthparents, if possible, to ascertain their opinions and general information for inclusion in the court report.
It is helpful for a social worker to meet with the surrogate in person to ascertain her views on the proposal and talk over the adoption process. However she can choose not to meet and hence a telephone call may be more appropriate. There is no need to ascertain their attitudes or to collect information about their family history as this work has been done with the counsellor at the fertility clinic.
Social workers placement approval — when this can occur
The Status of Children Act 1969 makes it clear that:
- the woman who gives birth to a child born of IVF surrogacy is the legal mother
- the providers of the gametes for IVF surrogacy have no parental status.
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 (that is, a sister or sister-in-law of either applicant), in which case they may take the child 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 take the child into their home for the purpose of adoption.
The Adoption Act 1955 gives no indication of when prior approval may be given.
In an IVF gestational surrogacy, in which the child has been conceived with the specific intention to be 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 the child, which was approved by ECART before the child was conceived. This statement could not legally bind the surrogate mother to consent to the adoption but it is a clear indication of the consideration she has given to the intending parents’ parenthood being legally complete and represented on the birth certificate. It is usual for both parties to want the child to be cared for by his or her genetic parents directly after the birth.
A social worker may consider issuing approval for the placement of the child prior to the signing of consent given that:
- the IVF surrogate makes contact, in person or through her solicitor, prior to the birth, to indicate her wish for the child to be cared for by the genetic parents prior to her consent to adoption
- the IVF surrogate contacts you after the birth to provide the details necessary for the certificate of approval, specifically the child’s:
- name (as it will be registered)
- place of birth
- date of birth
In the event that these conditions have been fulfilled, you can verbally approve the child being placed with the adoptive applicants, forwarding the social workers placement approval to the applicants’ solicitor on the next working day following the birth. The approval remains valid for 28 days from the date of issue.
A case note needs to be placed in CYRAS detailing the reasons why early social workers placement approval was given. Complete template on CYRAS for social workers placement approval.
Report to the Family Court
When the request for a report is made, a home visit is appropriate to ascertain the child’s well-being and developing attachment. The Court report will be a clearly factual record of the circumstances of the surrogacy, basic information about the applicants’ assessment and the current circumstances.
Unless there have been any adverse indications it will be appropriate to recommend the granting of a final Adoption Order in the first instance. Consideration should also be given to recommending that the report be released to the applicants so that the child has access to their story.