Fertility and the law

Making babies: A Herald series

Laws that govern sperm and egg donors and surrogacy are being called outdated and out of touch with modern Kiwi families. Charity Fertility NZ wants to see a law review of how much compensation egg and sperm donors and surrogates can receive — in hope it will reduce monstrous wait times.

The wait for Kiwis wanting to conceive can be over two years for a sperm donation and a year for an egg donation. Getting a surrogate is near impossible unless you can find one yourself — so many go abroad to access commercial surrogacy.

Juanita Copeland, whose daughter was conceived using IVF, said the couples who need donor sperm and eggs are already under huge pressure to get pregnant quickly. The Fertility NZ executive committee member believed offering more adequate compensation would attract more donors and cut down wait times.

Fertility Associates currently pay $1650 for egg donors and sperm donors are reimbursed $70 per visit.

“It really does just cover costs,” Copeland told the Herald.

“No one will ever make money off being a surrogate or donor.

“We would like to see more financial recognition for what they do. It really needs a law change, everything is done fairly ad hoc.”

Surrogacy applications considered by the Ethics Committee on Assisted Reproductive Technology have fluctuated between 12 and 25 over the last five years. But international surrogacies have steadily risen, family law expert Margaret Casey, QC, said.

Casey, who oversees the majority of international surrogacy cases in New Zealand, said five years ago she saw one or two babies a year; now it’s up to 20.

She said most people go to America where commercial surrogacy is available for around $100,000 in some states.

Casey agreed that legislation could be better, like Tasmania’s surrogacy-specific laws that sees the transfer of parentage through a parental order — rather than an adoption order. It also allows compensation for any time taken off work and expenses like childcare.

“That’s the model we should have in New Zealand, simple to read and it preserves the right of the woman who gives birth. I would just bring it straight across the Tasman, you wouldn’t have to change anything.

“People don’t like having to adopt, they don’t like the connotation associated with the old legal process. They don’t like the word or fact they can’t legally compensate the surrogate for all the out-of-pocket expenses they do have.”

But it’s not simple, Casey explained. Currently an international surrogacy is a “statutory jigsaw” and involves up to five different acts — including the Status of Children Act, the Adoption Act 1955, the Marriage Amendment Act 2013, the Immigration Act and the Human Assisted Reproduction Act 2014.

While some change was needed, other parts of New Zealand law were progressive and “ahead of the pack” when compared to the rest of the world, she said. She cited the fact children get access to information about their egg or sperm donor when they turn 18. “New Zealand recognises that it doesn’t matter what adults think, a child has the right to this information about their identity. “That comes from our appreciation of Maori culture, whakapapa, our genealogy and in response to the bad experiences people had with closed adoption.”

Casey also believed children should have two birth certificates. One with their basic information for general use and another that has a detailed account of all the donors, birth parents, biological parents and other information.

“We’re creating these children in unique ways and the child will ask questions as they mature.

“People forget or change their mind about what information they’re prepared to share, or information is lost . . . We should be getting real and normalising it.”

Copeland said Fertility NZ intended to approach the new Minister of Health David Clark and discuss a law review.