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In-vitro fertilisation (IVF) surrogacy adoption: Legal issues

Updated: 01 July 2013

When assessing applicants for an adoption involving surrogacy we need to be aware of the work the applicants have already done in preparation for the in-vitro fertilisation at the fertility clinic. By asking the applicants to describe this experience we will be able to build on existing knowledge and enhance understanding rather than being merely repetitive.

Legislative background

The Human Assisted Reproductive Technology Act 2004 regulates IVF surrogacy in New Zealand. A fundamental principle of the HART Act is that the health and well-being of children born as a result of the performance of an assisted reproductive procedure or an established procedure should be an important consideration in all decisions about that procedure.

The Advisory Committee on Assisted Reproductive Technology (ACART) issues guidelines concerning surrogacy, including IVF surrogacy. The ACART guidelines require there to be discussion, understanding and declared intentions between the parties about the day-to-day care, guardianship, including adoption of any resulting child, and any ongoing contact.

Ethics Committee on Assisted Reproductive Technology

Before medical procedures can take place, the HART Act requires the fertility clinic to apply on behalf of each potential in-vitro fertilisation surrogacy proposal to Ethics Committee on Assisted Reproductive Technology (ECART) who can give approval to the IVF surrogacy proposal on a case by case basis, according to ACART’s guidelines.

Intending parents do not appear before the committee themselves. ECART requires each application to be anonymous. The fertility clinic requests approval to perform the procedure based on reports on the intended IVF surrogacy collated from medical, legal and counselling sessions with both sets of parents.

If the intending parents wish to adopt the child born of an IVF surrogacy, they must also provide a letter from Oranga Tamariki concerning their suitability to adopt.

Timeline for surrogacy

Fertility clinics employ counsellors who assist applicants for IVF surrogacy to prepare their application to ECART. They must begin this process at least 12 weeks prior to the deadline for each ECART meeting (dates are listed on the ECART website).

The sequence of events leading up to application to ECART includes:

medical appointment for intending parents
medical appointment for intending surrogate mother
counselling sessions for intending parents (2 at a monthly interval)
counselling sessions for intending surrogate mother and partner (if any) (2)
joint counselling session
counselling session for any significant others
legal appointments for intending parents
legal appointments for intending surrogate mother and partner if any.

Doctors, counsellors and legal advisors all provide reports on their sessions to accompany the anonymous application to ECART.

Definitions

Assisted Human Reproduction (AHR)	Reproduction not through sexual intercourse. This term is used in the Status of Children Act.
Commissioning parent(s)	Persons who have agreed to take and care for the child produced by surrogacy.
Intending parent(s)	Persons who have agreed to take and care for the child produced by surrogacy.
Donated gametes	Donated eggs and/or donated sperm may be needed where either partner of a couple is infertile, or a person is infertile and does not have a partner.
Embryo	A group of cells that has the capacity to develop into an individual.
Embryo donation	Couples having frozen embryos surplus to their requirements give permission for an embryo being implanted in another woman as her child.
Established procedure	Any procedure, treatment, or application declared to be an established procedure under section 6 of the HART Act. Please note that this is different from AHR under the SOC Act.
Gamete	An egg or a sperm.
Gestational parent	A woman who agrees to bear a child as a result of a surrogacy arrangement – legally the mother.
In-vitro fertilisation (IVF)	Conception occurs outside the body and the embryo is implanted.
Partnered woman	Someone who is married, in a civil union or de facto relationship (including same sex relationships).
Placement approval	The social worker’s formal approval of the placement of the child with the intending parents who are the adoptive applicants. Not to be confused with the supervisor’s approval of the assessment.
Surrogacy	An arrangement under which a woman agrees to become pregnant for the purpose of surrendering custody of the child born as a result of the pregnancy.
Woman acting alone	A woman who is not a partnered woman or who is a partnered woman but has undergone an AHR procedure without her partner’s consent.

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