The existing legislation, dating back to 1955, dictates that every parent of a child born via surrogacy must undergo an adoption process, even if they are biologically related to the child.
As a result of this law, some New Zealanders have sought surrogacy arrangements in countries like Thailand, where surrogacy is prohibited.
In a recent case in the Family Court, where all identities were kept confidential, a man from New Zealand paid a company in Georgia to facilitate IVF treatment for a surrogate mother from Uzbekistan.
He then had to seek court approval to legally adopt the baby boy.
The presiding judge expressed that the court had no choice but to grant the adoption order, as denying it would leave the child stateless and in a legal limbo, unable to stay in Georgia or leave the country.
The judge deemed the situation a “fait accompli,” implying that the child’s fate had already been determined and could not be altered, even before the case was brought to court.
According to the details revealed in the recent judgment, the man and a woman he claimed was his de facto partner signed an agreement with a reproductive agency in Georgia, specializing in IVF and surrogate mother services.
The agreement mandated that the couple be legally married, as per Georgian law, or be in a de facto relationship for at least a year, with a medical reason for pursuing surrogacy. The agency accepted the woman’s age as a legitimate risk for pregnancy.
Although the couple was supposed to get married, no ceremony took place, and they only lived together briefly.
The man stated that surrogacy was suggested by his parents, and he learned about the agency through a friend.
The surrogate mother, a 38-year-old from Uzbekistan, had minimal information disclosed about her residency status in Georgia or if she had traveled there for the surrogacy arrangement.
The man had met the surrogate only once when he went to Georgia to provide a sperm sample, and the embryo was implanted in November 2024.
By 2024, the man and his alleged de facto partner had separated, but he continued with the surrogacy process alone. He informed the agency of the change in his relationship status in early 2025, and they did not raise any objections.
At that point, the surrogate was six months pregnant.
The man granted power of attorney to the clinic to handle all post-birth paperwork, and the agency obtained a Georgian birth certificate for the baby, listing him as the father and his alleged de facto partner as the mother, not the surrogate.
‘Uncomfortable facts’
Georgia currently allows gestational surrogacy, where the intended parents are recognized as legal parents at birth, while the surrogate has no parental rights or responsibilities.
Only heterosexual married couples (or de facto couples of at least one year) can enter into surrogacy agreements.
In June 2023, Georgia announced plans to ban commercial surrogacy for foreigners, though the legislation has not been finalized.
Under current New Zealand law, intending parents of children born via surrogacy have no automatic rights. At birth, the legal parents are the surrogate and her partner, requiring a formal adoption process to establish parental rights.
This also applies to children born through surrogacy overseas, even if they share DNA with a New Zealand citizen.
The Improving Arrangements for Surrogacy Bill aims to align New Zealand law more closely with Georgian law, but is still under consideration by select committee.
Judge Belinda Pidwell of the Family Court concluded that, based on the evidence, the man and the woman he claimed was his partner were not in a de facto relationship, and it was unclear how the Georgian agency verified their relationship status.
“There is an uncomfortable inference that [the man’s] relationship with [the woman] was solely for the purpose of meeting the surrogacy agreement requirements,” Judge Pidwell stated.
“Once the pregnancy was viable, the relationship ended. [The man] would not have qualified for the surrogacy agreement without her.”
Judge Pidwell highlighted that courts worldwide have grappled with cases where surrogacy laws conflict with children already born, sometimes unlawfully.
“The focus of New Zealand courts, however, is to prioritize the child’s rights over penalizing the parents,” Judge Pidwell emphasized.
In her ruling, Judge Pidwell acknowledged several troubling aspects of the baby’s conception in this case, but ultimately prioritized the child’s well-being.
“Should [the baby] suffer because his father engaged in a surrogacy agreement in Georgia?”
“The overarching concern is this: By granting adoption orders for children born through illegal surrogacy, New Zealand courts could be seen as endorsing and supporting illicit contracts.”
Judge Pidwell concluded that while no clear illegality was identified, there were uncomfortable facts indicating the surrogacy agency facilitated the man in creating a child while disregarding the rights of the surrogate mother.
Ultimately, the adoption order was approved, with Judge Pidwell emphasizing the child’s welfare and the need for him to be cared for by his father, the only available family member.
By Jeremy Wilkinson
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