The Law Commission is reviewing the regulation and practice of surrogacy law in New Zealand, with a view to making recommendations to the Government to “ensure that the law meets the needs and expectations of New Zealanders and protects the rights and interests of people involved in surrogacy arrangements, including children born as a result of a surrogacy arrangement, surrogates and intended parents.”

Associate Professor Debra Wilson, the author of Westlaw New Zealand’s commentary in the Family Law – Child Law chapters on Surrogacy and the Human Assisted Reproductive Technology Act 2004 (HART Act), is one of the four members of the Law Commission’s expert panel for their issues paper ‘Te Kōpū Whāngai: He Arotake - Review of Surrogacy’.

She has written a summary for Thomson Reuters Legal Insight (New Zealand and Australian editions) setting out the seven specific issues under consideration in the Law Commission Issues Paper.

Associate Professor Wilson says:

“The HART Act was drafted in 1997, at a time when there were two known examples of surrogacy in New Zealand. It was therefore heavily influenced by the US Baby M case, involving a widely publicised custody dispute between intended parents and the surrogate. While other jurisdictions (notably the UK and Australian states) enacted provisions similar to the HART Act at approximately the same time, these other jurisdictions have since reviewed and updated their laws to reflect increasing understanding of the practice of surrogacy.

The HART Act, on the other hand, remains in its original form. The Law Commission Issues Paper is a substantial achievement in that it identifies and acknowledges issues and oversights in the law, and provides proposals or options to address these."

‘Te Kōpū Whāngai: He Arotake - Review of Surrogacy’ (NZLC IP47, 2021) is available on the Law Commission website. Submissions close on 23 September 2021.