As New Zealand reviews its surrogacy and adoption laws, Dr Anne Else argues that fertility is another area where we are falling short
Comment: This term Labour set out to tackle the urgent, long-delayed tasks of reforming surrogacy and adoption law. But both projects have become bogged down.
The Law Commission's extremely thorough report Te Kōpū Whāngai: He Arotake | Review of Surrogacy was published in May 2022. By then the Health Committee was looking at Tamati Coffey’s much narrower bill, Improving Arrangements for Surrogacy. He said he was “open to the idea of my member's bill being absolutely superseded by a strong piece of legislation informed by the work of the Law Commission”.
Last October the committee announced it would consider how the report’s 63 recommendations could be used to amend his bill – a mammoth task. On May 30 this year, Minister of Justice Kiri Allan said the Government would adopt the bill to “fast-track” the work, due by August. While this may speed up the rewrite, nothing is expected to get through before the election.
READ MORE: * Growing pains: Our outdated adoption laws * The myth of adoption as a social good
Adoption is even further behind: the Ministry of Justice is still working on its package of policy proposals. So as the minister confirmed in May, there’s not enough time left this term to pass new legislation on that either.
There’s general agreement that adoption should play no part in surrogacy. But the Adoption Act 1955 is still being used there and in other situations. Its past consequences keep coming back to haunt the present.
The first reading of the Annie Oxborough Birth Parents Registration Bill took place on May 10. Its purpose is to enable Annie Oxborough to replace the names of her adoptive parents (both deceased) with those of her birth parents on her birth certificate.
This private bill is the only way she can achieve that. Put up by National MP Chris Penk, it was supported by speakers from National, Labour, Act, the Green Party and Te Pāti Māori. Several spoke movingly of how closed stranger adoption had personally affected them and their families. They also pointed out that although this bill doesn’t create a legal precedent and can’t help anyone else, it demonstrates how much full reform of adoption law is needed.
Why do these reforms matter?
It’s likely that only 50 to 70 children a year are being born through surrogacy of any kind – supervised by clinics and approved by the Ethics Committee, privately arranged without IVF, or managed by international commercial services. Local adoptions of unrelated children have fallen to under 20 a year.
But the low numbers are irrelevant. The state legally sanctions all the processes through which children can be either transferred to new legal parents or deliberately created for them by using other people’s reproductive powers.
It has a duty to safeguard everyone involved in these complex arrangements, especially the children. Though parts of existing laws and regulations are working well, overall they’re broadly recognised as not fit for this purpose.
Powerful commercial forces have for decades fought to grow and maintain consumption patterns that damage fertility. But every week now, there’s a new report on how human fertility is also being drastically affected by global pollution, from worsening air and water quality to the endocrine-disrupting chemicals used in thousands of products.
The Law Commission review has been widely welcomed. Its recommendations can serve as a blueprint for providing the best possible legal support and protection for the rights and wellbeing of everyone directly concerned. Above all, this means protecting the children being created through surrogacy and donor conception, before, during and after they are born – for example, through post-birth plans and full, accessible information on origins.
The importance of sustaining interconnectedness, whakapapa and whanaungatanga is a crucial aspect of human reproduction. For decades this was denied by practitioners and the state, who encouraged intending parents to deny it too.
Today it’s much more widely recognised, as both the adoption and surrogacy projects show. As Dr Lorna Dyall has put it:
Knowledge and protection of whakapapa is now no longer
an important issue for Māori only, but is an integral part of
the values and knowledge that all New Zealanders hold as
important. It is a taonga (gift) which people wish to pass on to
future generations.
It would be appalling if nothing comes of these vitally important reform efforts. Despite the delays, the unfinished business of drafting, publicly consulting on and passing new legislation for both adoption and surrogacy must be completed as soon as possible after the election.
Taking a closer look at infertility (mate matapā)
By 2020, when the total fertility rate fell to 1.61, well below replacement and the lowest on record, concern was already rising about the impact of infertility (rather than choice). Yet surprisingly little is known about infertility in New Zealand.
Some people, most of them women, learn early on that a specific issue has impaired or removed their ability to have children. But most discover there’s a problem only when they attempt to have children.
Primary infertility is about problems having a child at all. Secondary infertility is when a subsequent pregnancy or live birth cannot be achieved after one or more earlier ones. In 2018, Dr Mary Birdsall of Fertility Associates estimated that at least half their client base had secondary infertility.
Assisted reproductive technology (ART), especially in-vitro fertilisation (IVF), is being promoted as the over-arching solution to what looks like a surge in fertility problems. But it’s seriously mistaken to see this as the answer, just as it was to see adoption that way.
Actual success rates as a proportion of initiated IVF treatments are still low, particularly for those in their late 30s and over. A relatively small proportion of people dealing with infertility can get public funding (though they still have substantial payments to cover). For many others the costs are prohibitively high.
The 'supply' of sperm, eggs, embryos, gestation and birth by others, needed by intending parents with social or some kinds of medical infertility, is hard to maintain. Just as most single pregnant women did not want to give up their children for adoption by strangers, and gave in only under heavy pressure, most people don’t want to offer their reproductive powers without an existing close connection. Overturning the ban on paying fees, not just reasonable costs, will not fix this; research shows that those who do come forward have altruistic motives.
'Fixing' infertility gets far more attention and money than protecting fertility in the first place. At the most simplistic level, women repeatedly get blamed for simply “leaving it too late” to have children (and women who’ve chosen not to have children get bombarded with disapproval).
Powerful commercial forces have for decades fought to grow and maintain consumption patterns that damage fertility. But every week now, there’s a new report on how human fertility is also being drastically affected by global pollution, from worsening air and water quality to the endocrine-disrupting chemicals used in thousands of products.
Factors such as precarious income and employment, lengthening work hours, childcare problems, unaffordable housing and pressures on relationships add up to a social and economic environment that is increasingly toxic to having and caring for wanted children before fertility wanes away.
Even with the best possible provision and regulation, assisted reproductive technology cannot fix these problems. The scale of effective local and global action required to deal with them is on a par with action on climate change. A sustainable future depends on how well we solve both.
Dr Anne Else has published widely on the socio-legal history of adoption and fertility treatment involving donation and surrogacy. Her latest publication, written with Dr Maria Haenga-Collins, is: A Question of Adoption: Closed Stranger Adoption in New Zealand 1944–1974 and Adoption, State Care, Donor Conception and Surrogacy 1975–2022. Bridget Williams Books 2023.
