Surrogacy: what have genes got to do with it?

20 August 2015

Rhonda Powell

genetic link


These days, families come in many forms and are created in many ways. Some children have two mothers, some two fathers, some have two parents, some have one parent and many have more than two adults playing de-facto parental roles. Some people conceive naturally. Some conceive through self-insemination or in-vitro fertilisation (IVF) and some commission a surrogate mother to carry and give birth to a child on their behalf.

New Zealand surrogacy laws lack coherence and need rethinking. As one aspect of this, the importance and role of the genetic parent-child relationship should be explored further.

In New Zealand, Ethics Committee on Assisted Reproductive Technology (ECART) approval is required for the IVF process where a surrogate mother is involved. Retaining a genetic parent-child connection is seen as the reason for commissioning surrogacy rather than adopting and so surrogacy without a genetic connection is considered ‘unethical’ by ECART.

Immigration New Zealand takes a similar position when considering applications for couples to bring children born to overseas surrogate mothers into New Zealand. If genetic tests do not show a genetic link between the child and at least one commissioning parent, the child may need to be adopted overseas. This can be problematic if the country of the child’s birth country already deems the commissioning parents to be the child’s legal parents.

New Zealand’s parental status law takes a different approach and treats genetics as irrelevant. The birth mother and her partner (if she has one and they consent to the arrangement) are deemed to be the child’s parents irrespective of circumstances.

For children conceived by IVF, ignoring genetics brings about the legislation’s intended result: the birth mother and her partner are the child’s parents in law. Donors have no legal parental relationship with the child. However, for children born as a result of surrogacy (with or without a donor egg or sperm), ignoring genetics brings about an unintended result: the surrogate and her partner are the child’s parents in law.

Maintaining genetic connections is important to many New Zealanders. For example, in Māori communities, practices such as whāngai (fostering or adopting within extended whānau) maintain genetic connections, even if this is not between parent and child. Whāngai nonetheless upholds the Māori concept of whakapapa, which emphasises the importance of genealogy to identity.

However, in some cases, a legal requirement for a genetic parent-child connection will be an obstacle to forming a family. Our laws need to recognise that when it comes to families, just like other relationships, there is no one size that fits all.


Rhonda Powell is a Lecturer in Law in the College of Business and Law at Canterbury University. Her research interests include health law, particularly in relation to pregnancy and maternity rights.