In my social media feed this month: an image of a single man with the child he bought in Spain via a commercial arrangement, an older male couple (50s they say though one looks 60s) with a baby they have acquired through surrogacy (a friend) and finally, two ultra camp American male LGBTQ influencers each holding a surrogate baby filmed at the airport.
Surrogacy is the new adoption. Once regarded as a viable option for a child born out of wedlock, the biggest group of adoptions in New Zealand now involve children born through surrogacy. The 2022 Law Commission’s review of surrogacy estimated that, based on available information, around 50 children are born because of a surrogacy arrangement each year.
Currently, these children have to be adopted by the commissioning parents. In 2023, when 85 court reports were written for adoption applications, 36 of them (42%) were for children born through surrogacy. Only nine reports were for children unrelated to their adopters.
Traditional adoptions are declining in number while adoptions because of surrogacy are growing. Very few babies come up for adoption these days. Decades earlier, most adoptions were of babies born to teenage mothers. But thanks mainly to effective contraception, these births have plummeted. In 2022 Statistics NZ reported there were only 1719 births to teenage mothers, and most of them were aged 18 or 19. This is a global trend in most western countries.
Surrogacy offers people the chance of having a child genetically related to them. But attitudes are hardening against international surrogacy in countries formerly favourable to the practice, such as India, the Ukraine and Georgia. Surrogacy is also banned in most European countries and some US states, though many have favourable surrogacy laws.
Here, and in Australia, commercial surrogacy is illegal but what is known as altruistic surrogacy, via IVF or organised informally, is allowed. Our surrogacy statistics include international arrangements where the intended parents live in New Zealand and the surrogate lives in another country.
Oddly the growth in surrogacy is against the backdrop of what we now know about the impact of adoption on both birth mothers and adopted people, who have reported that adoption can be traumatic. In the past, young women gave up their babies only because they were pressured into it and felt they had no other choice.
An adoption researcher who is herself adopted, academic Barbara Sumner says the argument for surrogacy now is similar to that used to support adoption in the past – that love would overcome all. But, says Sumner, often love is not enough.
From the point of view of the baby moved to new parents, all adoptions are forced. Sumner says this simple action severs the baby from the smells, sounds and tastes of the only other human they have known for nine months. Breast-feeding does not occur.
But, as the adopted writer and author of the book A Question of Adoption, Dr Anne Else, says, if surrogacy is banned, people will only go overseas or make secret private arrangements. It’s why she largely supports the proposed changes in the new Improving Arrangements for Surrogacy bill, based mainly on the Law Commission’s 2022 recommendations.
The current iteration of the bill is vastly different from the sketchy bill crafted by former Labour MP Tamati Coffey which favoured commissioning parents. The Law Commission’s 2022 review of surrogacy recommended a cautious approach to regulation to protect and promote the rights and interests of surrogate-born children, surrogates and intended parents since as noted, “there is limited information about the long-term impacts of surrogacy on surrogate-born people” – and on surrogates themselves.
Else is pleased that the Bill requires detailed “identity information” about surrogates and donors to be permanently recorded (though for overseas surrogacies, this could be harder to complete). Surrogate-born people would be told about this information and how to access it when they apply for a birth certificate.
“But there’s very little attention to Māori perspectives in the Bill, ignoring what the Law Commission asked for. Recording surrogates’ and donors’ hapū and iwi is nowhere near good enough.”
She’s also concerned that the bill doesn’t seem to give surrogates and donors any rights to information about the children born for others. Donors on the existing donor register do have this right, and so do birth parents of adopted people.
Sumner would prefer family preservation and, in the case of welfare needs, forms of enduring guardianship that do not break the bond with reality.
“Adoption destroys the feeling of belonging in a family chain of generations. Human adoption is bound up in secrecy and erasure. Historically, people made adoptable were seen as the cure for infertility. Little has changed. Adoption is not a one-off act. It is intergenerational; the adopted person’s’ allocated identity is passed on to their descendants. Now as then, adoption represents the acquisition of a child to meet adult needs. One day, these surrogacy-born people will have to fight the same battle for equal rights with the non-adopted that we are currently fighting for.”
The Women’s Right’s Party (WRP) broadly supports the changes suggested in the new bill, especially the shift in emphasis on the rights of the birth mother, who may consent to transfer her parental status after she has given birth, not before as in the Coffey draft bill.
But, like Else and Sumner, the WRP has concerns about the concept of surrogacy itself. Their submission raises some fundamental questions they believe the Health Select Committee should have asked. Such as whether surrogacy is inherently exploitative of women no matter how well they are reimbursed and whether having a baby via surrogacy is really a human right. And perhaps single men should be ruled out as prospective parents of surrogate children.
Although commercial surrogacy is illegal in New Zealand, the WRP questioned whether it is possible to eliminate the coercive element they believe is inherent in any surrogacy. Even in New Zealand those with means may be able to ‘buy’ a baby to be carried and birthed by marginalised and desperate women. This inequity is amplified in international commercial surrogacy, and has led WRP to question whether international ‘rent a womb’ arrangements should be banned for New Zealand citizens.
The deadline for submissions on the Improving Arrangements for Surrogacy Bill is 18 September.
