The Human Assisted Reproductive Technology Act 2004 defines a surrogacy arrangement as being one in which “a woman agrees to become pregnant for the purpose of surrendering custody of a child born as a result of the pregnancy.”

There are two forms of surrogacy, traditional (or partial) surrogacy and gestational (or full or IVF) surrogacy. In traditional surrogacy, the surrogate mother provides the ova, and is therefore the biological or genetic mother of the child. In gestational surrogacy, the surrogate mother does not provide the ova, and there is therefore no genetic link between the surrogate and the child. Pregnancy generally occurs through IVF in a fertility clinic (perhaps with the use of donor sperm or ova) with the embryo being fertilised and then implanted into a surrogate.

Surrogacy arrangements can be defined as either commercial or altruistic (or compassionate, or non-commercial). In a commercial surrogacy, the surrogate is paid, whereas in altruistic surrogacy, she is not (although reasonable expenses relating to the surrogacy can be paid). Commercial surrogacy is not permitted in New Zealand.

In New Zealand, surrogacy is regulated under the Human Assisted Reproductive Technology Act. It is defined under this Act as a ‘regulated procedure’, which means that a fertility clinic cannot carry out the IVF process in relation to surrogacy without approval from the Ethics Committee on Assisted Reproductive Technology (ECART).

ECART is a body formed under the Human Assisted Reproductive Technology Act, with its main function being to consider and determine applications for assisted reproductive procedures. In determining applications, it must follow any Guidelines published by the Advisory Committee on Assisted Reproductive Technology (ACART).

Another piece of relevant legislation is the Status of Children Act 1969. This Act explains the legal parentage of the child. The child’s mother is the woman who becomes pregnant with the child (the surrogate). If the surrogate has a partner, the partner may also be classified as a parent to the child if he/she consents to the surrogacy procedure. The intended parents, even if genetically related to the child, are not legally the parents in New Zealand. For this to occur, they must adopt the child, under the Adoption Act 1955.