Should Surrogate Pregnancy Arrangements - be Enforceable in Aotearoa New Zealand? - Core
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Rhonda M. Shaw Should Surrogate Pregnancy Arrangements be Enforceable in Aotearoa New Zealand? Abstract from surrogate mothers and ovarian egg donors Aotearoa New Zealand has no unified regulatory about their experiences of donating reproductive system governing the ethical and legal issues that materials and services. The aim of the article is to arise with surrogate pregnancy arrangements. expand the conceptual toolkit of assisted human Accordingly, legal scholars and moral philosophers reproduction to better understand the donative have recently called for revision to parentage and acts of women who share their reproductive payment around surrogacy. Several academics have materials and services, and to critically examine additionally suggested making surrogate pregnancy calls to introduce a regulatory model that makes arrangements enforceable under New Zealand surrogacy enforceable in light of concerns about law. This discussion combines empirical research the relational complexities of these arrangements. with key informants and experts working in the Keywords surrogacy, relational gifting, adoption, field of assisted reproduction with interview data reproductive legislation Rhonda M. Shaw is an Associate Professor in Sociology at Victoria feminist phenomenology, and empirical research on organ donation and University of Wellington. Her research interests include bioethics, transplantation, human milk sharing and assisted human reproduction. Page 18 – Policy Quarterly – Volume 16, Issue 1 – February 2020
N ... ‘New Zealand
on-commercial surrogate not want the baby. Conversely,
pregnancy is at one and the same enforceability of the arrangement would
time prohibited in numerous law, as it protect the intended parents if the
jurisdictions around the world (Allan, surrogate decided they did not want to
2017) and regarded as a legitimate currently stands, relinquish the baby upon birth.
pathway to family formation for people
experiencing medical or social infertility
fails to A second recommendation concerns
legal parentage and calls to amend the
(Berend, 2016; Imrie and Jadva, 2014; adequately Status of Children Act so that intended
Teman, 2009). As a pathway, surrogacy may parents are automatically parents upon the
be the last option for heterosexual couples address the baby’s birth. Under current law, the woman
when other forms of fertility treatment
have failed or a first step to creating a
complex issues who becomes pregnant is the legal mother
of the baby to whom she gives birth. Her
family for gay couples and single men. around partner, if she has one and they have
Surrogate pregnancy encompasses two consented to the donative procedure, is the
types of arrangement. In traditional commercial other legal parent of the child. The intended
surrogate pregnancy, a woman carries a
foetus, as well as providing genetic material,
surrogacy, parents, who may or may not have genetic
links to the baby via gametes, have no legal
for intended parents. These arrangements and surrogacy relationship to the child until it is
can occur without fertility clinic intervention transferred to them through New Zealand
and ethical review. In cases of gestational generally’ ... adoption legislation.
surrogacy, the birth mother provides the Under section 10 of the Adoption Act,
gestational services, but the gametes are which is used to transfer parentage from
provided by others (usually, but not always, the surrogate (and her partner) to the
the intended parents) through in-vitro the HART Act and supporting legislation, intended parents, the latter must apply for
fertilisation techniques. In Aotearoa New in relation to the enforceability of and obtain an adoption order from the
Zealand, gestational or clinic-assisted surrogate pregnancy arrangements. A key Family Court. The surrogate must sign a
surrogacy is a regulated procedure under concern for these commentators is that consent statement in the form of an
the Human Assisted Reproductive the HART Act provisions say very little affidavit to relinquish the baby, and a social
Technology Act 2004 (HART Act) and must about surrogate pregnancy arrangements worker is required to provide a report for
be approved via a process of ethical review and leave several issues unresolved. This the court regarding the suitability of the
by the Ethics Committee on Assisted criticism is not new. In 1999, Anne Else intended parents in respect of the
Reproductive Technology (ECART). referred to the legislation around AHR application (Casey, 2014).
The body of legal and bioethical research at the time as ‘confused’ and ‘piecemeal’,
on surrogacy in New Zealand is substantial saying, ‘a comprehensive new approach AHR vocabulary
and growing (Alawi, 2015; Anderson, is urgently needed’ (Coney and Else, 1999, These issues have attracted a range of
Snelling and Tomlins-Jahnke, 2012; Ceballos, p.56). More recently, Powell and Masselot recommendations for reform from
2019; Powell, 2017; Walker and Van Zyl, have commented that ‘New Zealand law, legal scholars, such as pre- or post-birth
2017; Wilson, 2018, 2019; Van Zyl and as it currently stands, fails to adequately parenting orders, the creation of a new
Walker, 2015), but with very few social address the complex issues around Surrogacy Act, and amendment to the
science studies of the lived experience of commercial surrogacy, and surrogacy Status of Children Act. My concern with
surrogate pregnancy. This article presents generally’ (Powell and Masselot, 2019, enforcing surrogacy arrangements is
empirical data from two qualitative studies p.vii). The point these commentators that it is out of step with the local and
discussing the motivations of surrogate make is that the legislation, which is a institutional moralities that underpin the
mothers and ovarian egg donors. The aim blend of the HART Act, Adoption Act 1955 promotion of donative acts and practices
of the article is to expand the conceptual and Status of Children Act 1969, creates in New Zealand. A central problem is the
toolkit of assisted human reproduction unnecessary stress for those involved, is term altruism, which is used in recruitment
(AHR) to better understand the donative not purpose-built, and requires overhaul. and promotional literature around AHR.
acts of women who share their reproductive A key recommendation for change Altruistic procurement of reproductive
materials and services. A corollary aim of pertains to section 14(1) of the HART Act, materials and services is legally mandated
the discussion is to examine the call to which states: ‘A surrogacy arrangement is under the HART Act. Although the term
enforce surrogate pregnancy arrangements not of itself illegal, but is not enforceable altruism is not used in the act, it has been
under New Zealand law. by or against any person.’ Commentators used in the Advisory Committee on
who advocate reform want to enforce Assisted Reproductive Technology
New Zealand legislation surrogacy arrangements to protect (ACART) guidelines and Oranga Tamariki
New Zealand legal scholars and ethicists surrogates should the intended parents website information (Oranga Tamariki,
have recently called for amendment to decide, for whatever reason, that they do 2019). The word altruism is also used by
Policy Quarterly – Volume 16, Issue 1 – February 2020 – Page 19Should Surrogate Pregnancy Arrangements be Enforceable in Aotearoa New Zealand?
the fertility clinic Repromed on their
website. Fertility Associates, which has 18
‘There are people All the surrogate mothers and egg
donors in study 1 regarded their acts as
clinics across New Zealand, does not use who want [a altruistic in some way, envisaging their
the term on its website, but does refer to donations as symbolic of human
egg donors giving ‘the ultimate gift’. The compensation] connection and empathy with people
link to ‘Becoming a donor’ says: ‘Being a
donor is about giving the most amazing
model and there’s experiencing infertility. Additionally, as a
New Zealand fertility counsellor in study
gift to a family in need. A chance to have people who say 2 commented, attitudes about the
a baby’ (Fertility Associates, 2019). importance of refusing payment for
Unsurprisingly, the same phrase is not they’d be insulted surrogacy persist among the group of
used in the link to ‘Sperm donors needed
– more info’. This may be due to the
to be paid, as surrogate mothers and donors she sees. As
she put it:
gendered labour required of sperm donors, it would have
which does not conjure an image of It is perfectly reasonable if somebody
selflessness or sacrifice in the same way as discouraged them is giving up their time and energy to
egg donation.
I have argued elsewhere that the
from being a carry a pregnancy for someone else that
they be given reasonable compensation,
conflation of altruism with gift is surrogate.’ but I also think that it in some way
misleading when used in relation to diminishes the altruistic nature of
contemporary moral economies that doing something incredibly generous
promote the donation of bodily cells, tissue and meaningful for other people.
and organs, since the term gift is deployed … People who are being surrogates
by stakeholders, donors and recipients recruited by convenience sampling and often say ‘oh no, I wouldn’t [take
alike in a variety of different ways (Shaw, snowballing. The data was analysed money], you know that would tarnish
2015). Rather than relying solely on thematically (Braun and Clarke, 2013) and what I’m doing’ … and egg donors. So,
altruism, I suggest expanding the documented participants’ views on policy not everybody receives the expenses
conceptual toolkit of AHR to help explain and legislation around AHR, compensation payment, they refuse it, they do.
why surrogate pregnancy arrangements and payment for surrogate mothers and
should not be enforceable. gamete donors, information disclosure Several other experts in study 2
To do so, I draw on two studies. The around donor conception, donor–recipient corroborated the existence of this attitude.
first study was designed to investigate the relationships, and access to fertility A New Zealand lawyer remarked that the
motives of women who donate reproductive treatment. positions people take on surrogacy and
materials and services, the kinds of payment are variable, saying: ‘There are
relationship (if any) that resulted from Framing donative motivations people who want [a compensation] model
their actions, and the relationship between To frame the experiences and social- and there’s people who say they’d be
the moral experience of donors and the psychological motivations of surrogate insulted to be paid, as it would have
vocabulary available to describe and mothers and egg donors, I draw on four discouraged them from being a surrogate.’
articulate their experiences (see Shaw, concepts that I have used in previous Relational gifting refers to dyadic
2008). This research involved fieldwork and research (Shaw, 2015) to talk about bodily relationships – of which the parent–child
in-depth interviews with 14 women about donation: unconditional gift; relational relationship is paradigmatic – between
their experiences of egg donation and gifting; gift exchange; and body project. intimates or people who are familiar to or
surrogate pregnancy. Of the 14 women in The image of an unconditional gift is the become known to one another. Importantly,
the study who donated ovarian eggs, three concept that often comes to mind when the term ‘relational’ emphasises how
had also been involved in traditional people think of surrogate pregnancy and people’s sense of self is constructed in their
surrogate pregnancy arrangements, and egg donation as an altruistic, other-oriented, relationships with others and in terms of
one had been a gestational surrogate. selfless act. This kind of altruism refers to a their social roles. In relational gifting, the
The second study draws on qualitative gift that is given freely (voluntarily), without donor presents their donation as a
research undertaken from 2017 to 2020 remuneration or external reward. It is personalised gift which symbolically
with key informants and experts about regarded as unidirectional (one-way) and connects them to their recipients (Gilman,
their views on AHR.1 This project includes disinterested (offered without regard to the 2018).
in-depth interviews with 45 New Zealand quality of the recipient). One of the This notion of the gift relation tends to
and Australian legal scholars, lawyers, requirements of the unconditional gift is underpin the gendered practice of donating
ethicists, social scientists, fertility clinic that the donor surrenders or ‘relinquishes’ ovarian eggs and surrogacy and is
specialists, counsellors, ethics committee any idea of property rights or control over institutionally sanctioned in relation to
members and representatives of stakeholder their bodily donation. AHR. For example, in New Zealand, fertility
groups. The participants in this study were clinic egg donors and recipients meet for
Page 20 – Policy Quarterly – Volume 16, Issue 1 – February 2020joint counselling sessions in line with
ACART guidelines and the current Fertility
... for Ma-ori who to donate ova and become surrogate
mothers as an assertion of individual agency
Services Standard; in surrogacy subscribe to and a way to exercise autonomy and
arrangements in which the relevant parties independence. Aside from symbolising
are strangers, ECART expects them to form traditional views, moral connection with the donor, they
a relationship over six months before
making an application; and in online
what is given in donated reproductive services and materials
as projects of the self, or as events that
surrogacy support groups, the social the process of marked new beginnings in their lives. One
etiquette guiding prospective surrogates woman in study 1 had been left at the altar
and intended parents’ interactions requires third-party by her fiancé; one had experienced a string
that they get to know one another before
broaching a surrogacy arrangement. The
reproduction is of deaths in rapid succession and,
recognising the inherent vulnerability of
same approach to counselling and the not simply the human beings, felt compelled to reaffirm
establishment of a relationship between a life; another woman had a pregnancy
surrogate mother and intended parent(s) generous gift of termination. While these women did not
is taken by the Patient Review Panel and
fertility clinics in Victoria, Australia.
shared body give the impression that they acted directly
to resolve feelings of grief or assuage guilt
Gift exchange is an anthropological tissue, but a at having lost a loved one or a child, such
concept that emphasises the social life events were not discounted as irrelevant
significance of giving, receiving, and different kind of to their decision making.
reciprocating. The notion of gift exchange
draws on Mauss’s (1990) view that the
futurity for the Additionally, some studies indicate that
women elect to be surrogate mothers
giver’s identity, essence or spirit is inserted individual because they like being pregnant (Imrie
or invested in the gift or donative act, and and Jadva, 2014). This was not a stated
consequently requires reciprocation. Again, concerned and the motivation for the women I interviewed.
like the gift relation, this is a relational
ontology. However, gift exchange goes
groups to which However, although it is uncommon, there
are anecdotal accounts of childless/child-
further: sharing biological matter such as they belong. free women in New Zealand becoming
body parts and substances not only creates traditional surrogates because they want
relationship responsibilities between to experience pregnancy. Additionally,
donors and recipients; for some cultural several fertility clinics reported seeing
groups, such as Mäori, gift exchange surrogates who have not been pregnant
implicates entire kin networks (Mead, transferred between donors, recipients and before being approved by ECART. Some of
2003; Salmond, 2012). Where gift exchange the larger group, but also rights and these women donate their services to
relationships exist, donors do not construe responsibilities, and, with that, the family members; others may find
bodily gifts as alienable, and may not see importance of information sharing about themselves ‘childless by circumstance’
themselves as ever relinquishing control donor conception. rather than design (Cannold, 2005), and
over the gift. Another key motivation for giving consider a surrogacy arrangement as an
The idea that kinship is fixed by reproductive gifts or services is to establish opportunity to ‘try’ pregnancy.
biological relatedness is a powerful people’s moral identities as pro-social. In Ragoné suggests that women who
motivation for people to assist one these cases, surrogate pregnancy objectifies become surrogate mothers may also want
another’s reproductive journeys. One of a person’s sense of self as good, kind or civic- to ‘transcend the limitations of their
the surrogate mothers interviewed in study minded and can be conceptualised as a domestic and motherhood roles’ (Ragoné,
1 said that she agreed to be a traditional process of identity-construction that 1994, p.65). As an extreme example, some
surrogate for her sister because they valued involves a body project. Sociologists have surrogates enjoy the public attention their
keeping genetics and reproductive matters talked about people engaging in body acts elicit. In study 1, two surrogate
within the family, as did several egg donors. projects by altering their bodies as part of mothers were equally generous about
Likewise, Glover and Rousseau’s (2007) make-over culture and consumption disclosing their identities and stories as
qualitative research shows that for Mäori practices (Shilling, 1993), but body projects surrogate mothers to the media, and later
who subscribe to traditional views, what is are undertaken not simply by the self, for came to occupy roles as mentors in the New
given in the process of third-party the self; some people also deliberately Zealand surrogacy community. A more
reproduction is not simply the generous transform their bodies for the benefit of subtle example of this class of motivation
gift of shared body tissue, but a different others, to objectify themselves as a particular is about doing something ‘special’, which
kind of futurity for the individual kind of subject (Shaw, 2008). For instance, may be related to surrogate mothers’ view
concerned and the groups to which they in addition to displaying maternal affect and of themselves as exceptional because not
belong. It is not just bodily matter that gets care, some of the women in study 1 wanted everyone can be a surrogate (Berend, 2016).
Policy Quarterly – Volume 16, Issue 1 – February 2020 – Page 21Should Surrogate Pregnancy Arrangements be Enforceable in Aotearoa New Zealand?
An Australian psychologist from study
2, who has counselled over 200 surrogates,
‘The main problem Wilson’s online survey of 185 child and
family lawyers asked participants whether
said that she found surrogate mothers is, they’re all very surrogacy contracts should be enforceable.
tended to score slightly lower on the Of those who responded to this question,
median grandiosity scale in psychology close while 54 favoured the status quo as determined
tests than non-surrogates. She thought this
stemmed from, ‘a sense of having achieved
the surrogate is by the HART Act, and 75 thought surrogacy
arrangements should be enforceable
and stuff; it’s that sense of “I want to be pregnant, helping (Wilson, 2018, p.72). Ethicists Walker and
more than just a mum”, you know, “I want Van Zyl likewise want to enforce surrogacy
to do something … for my children to be her out. Oh yes, and advocate radical reform of the current
proud of me.”’ Likewise, several New
Zealand counsellors talked about egg
they’re getting on system. It is worth outlining their approach,
as it has been influential in academia and
donors and surrogate mothers wanting to with their children, the New Zealand media.
be ‘special’. One commented: Walker and Van Zyl support a centrally
you know, being controlled regulatory model to monitor
Sometimes I think with surrogates it is
an attention thing – they like to be put
close with their surrogacy. They present what they call their
‘professional model’ as an alternative to
on a pedestal and thanked and made to family, and we’re both commercial and altruistic surrogacy
feel special. I wonder sometimes (Walker and Van Zyl, 2017, p.12). The
whether money is changing hands in going to be close model is predicated on the idea of a
some cases. … Maybe you get a trip
somewhere or you get a holiday, or you
after, and then professional, multi-disciplinary body
tasked with facilitating surrogacy
get a voucher. afterwards she arrangements. This body would offer a
range of services, one of which would be
One participant from study 1 described signs the adoption registering and licensing prospective
her decision to become a surrogate mother
explicitly as a project. She was first an egg
paper and they run surrogates. The concept of licensing
prospective surrogates is novel and would
donor, and when that was unsuccessful she for the hills, you involve a regulatory body to oversee the
decided to offer her services as a gestational screening and ‘selection’ of surrogate
surrogate. This participant explained that never hear from mothers, who are paid a fee for service.
she liked the idea of surrogacy as a project
because it was ‘different’, enabling her to
them. And This would mean that surrogates could not
put themselves forward without being
be ‘part of the technology of my day’. it’s extremely vetted for approval (Walker and Van Zyl,
Unlike egg donation, which has ongoing 2017).
social implications for genetic continuity, tough on a Licensing would also involve training
gestational surrogacy represented a project
with a finite end. Another AHR project was
surrogate.’ surrogates in the care of their bodies and
pregnancies. There would be additional
reported to me by a key informant in study training in the assessment of values and
2 who said that one of their participants ethical standards, which Van Zyl and
had set a goal of doing the most surrogate Walker claim is not sufficiently provided
pregnancies in New Zealand (undertaking The question of enforcing surrogacy by current models in New Zealand. In their
three thus far). The emphasis by ACART and fertility model, the authors understandably
It is clear from the discussion of clinics on surrogate pregnancy emphasise the reproductive vulnerability
participants’ motivations that there are arrangements as relational, and the of the intended parents, who go to great
multiple reasons why women might be fact that parties are already encouraged lengths to get a baby and must rely on the
interested in becoming surrogate mothers by fertility counsellors and lawyers to surrogate’s trustworthiness and generosity.
and/or egg donors. Most of the women I think through and formalise agreements They comment that concern about the
spoke with were not hard altruists, in that (Wilson, 2019), raises questions about surrogate relinquishing the baby causes
they did not view their donative acts as the rationale for enforcing surrogacy uncertainty for the intended parents.
unconditional, one-way and with no arrangements. Although advocates frame Van Zyl and Walker discuss their
strings attached. They typically wanted their argument as protecting both parties position regarding the enforceability of
their generosity to be recognised (and not should either renege on the agreement, surrogacy in several texts, stating that in
necessarily in terms of payment). Most – enforcement creates an imagined their model intended parents would be
except for the gestational surrogate in study contractual environment of competition unconditionally recognised as ‘the legal
1 – were interested in ongoing relationships and fear and could be construed as a lack parents from birth’ (Van Zyl and Walker,
with the intended parents. of trust rather than cooperation. 2015, p.384). Their view is that ‘if a
Page 22 – Policy Quarterly – Volume 16, Issue 1 – February 2020surrogate cannot make a promise in
advance to relinquish the baby, she cannot
... one of the a relationship with the child, but a
relationship with the parents.’
enter a surrogacy contract’ (Walker and reasons the Israeli
Van Zyl, 2017, p.9). For them, ‘the intended Critiquing the professional model
parents are automatically the baby’s legal system appears to Elsewhere I have argued that framing
parents and no transfer is necessary. The
surrogate does not make a promise to
work is because bodily donation in terms of a hard
altruism/commodity distinction stymies
relinquish the baby because it is not hers the surrogate conversation around the social meaning
to relinquish’ (ibid., p.18). They go on to of money and reciprocity for donors’
say that this is ‘the most significant benefit mother induces body work and affective labour (Shaw,
of the professional model’ in ‘that it
removes the prolonged uncertainty that
dissociation ... 2015). This perspective broadly concurs
with Walker and Van Zyl’s position on
intended parents have to endure’ (ibid., from her body compensation. That said, I do have
p.21). Additionally, they do not advocate reservations about other aspects of their
that the surrogate has a ‘parent-like voice’ in order to model.
in the new family formation, but do permit
some presence of the surrogate in the story
collaboratively The first concern is that, as part of the
licensing of surrogates which Walker and
of the family, and some level of contact if project the Van Zyl suggest, surrogates would be
the surrogate so wishes (ibid., p.22). In screened and trained so that their values
short, Walker and Van Zyl argue for the pregnancy onto are aligned with those of the intended
intended parents to possess the rights and
obligations of legal parentage from the
the intended parents (2017, p.17). I take this to mean
that surrogates’ motives must be
birth of the baby, despite empirical mother, thereby compatible with the values that underpin
evidence that ‘a large majority of surrogates the professional model Van Zyl and Walker
relinquish the babies without difficulty and facilitating easy propose. While the authors are concerned
have no regrets later on, regardless of
whether they were gestational or genetic
relinquishment of to ensure that surrogates act according to
the right motivation to relinquish the baby,
surrogates’ (ibid., p.2). the baby ... the idea of schooling surrogate mothers in
In my empirical research, participants line with the values of the professional
discussed whether they experienced model derogates their autonomy and
bonding and emotional attachment with would remove surrogates’ right to rebut the
the baby, and if they found it difficult to presumption of parentage in favour of the
relinquish the baby after the birth. The intended parents, which evolve and change intended parents should the arrangement
gestational surrogate I spoke with expressed over time. A stakeholder from study 2, who be enforced (see Ceballos, 2019). In a
no connection to the baby when it was was also a traditional surrogate mother, pluralistic context such as New Zealand,
born, saying that ‘it helped that it looked was mindful to represent both sides of the where people have a range of (cross-cutting
so unlike [her]’. A traditional surrogate surrogate–intended parent story in a recent and sometimes contradictory) motivations
mother remarked: interview with me. At the end of her for donating reproductive materials and
account she commented: services, Walker and Van Zyl’s proposal
I felt like I was babysitting a friend’s seems out of step with the way ordinary,
child. I didn’t look at her and think, The main problem is, they’re all very albeit generous, people make real-life
‘Wow, that’s, that’s my daughter’. I’ve close while the surrogate is pregnant, moral decisions.
never ever looked at [baby X] and helping her out. Oh yes, they’re getting Walker and Van Zyl stress the pregnant
thought, ‘Wow, she’s my daughter’, and on with their children, you know, being surrogate’s right to self-determination and
I’ve never looked at [baby Y] and close with their family, and we’re going bodily integrity (2017, p.147), yet they
thought, ‘Wow, he’s my son’. Because to be close after, and then afterwards gloss over the corporeal investment
the whole intent of the surrogate is to she signs the adoption paper and they involved in ‘hosting’ a child for the intended
have a baby, have a child, for somebody run for the hills, you never hear from parent(s), discussing this dimension of
else, so that child is never yours. And I them. And it’s extremely tough on a generosity in seven lines of their book
think that’s why it’s quite hard for a lot surrogate. (ibid., pp.72–3). They claim that they do
of people to understand. not support the commercial system in
Confirming the significance of the Israel, in which the intended mother, not
These comments convey that surrogate surrogate–intended parent relationship, an the surrogate, is positioned as the primary
mothers are often clear in their own minds Australian stakeholder from study 2 stated: obstetrics patient (ibid., p.148). However,
about what they are doing. At the same ‘the key motivation for surrogates … in the the unintended effects of the professional
time, these women enter relationships with absence of payment is a relationship. Not model may result in similar circumstances
Policy Quarterly – Volume 16, Issue 1 – February 2020 – Page 23Should Surrogate Pregnancy Arrangements be Enforceable in Aotearoa New Zealand?
to those they denounce in Israel. That is, be considered and treated with respect; and donor-conceived. That may or may not
one of the reasons the Israeli system (g) the different ethical, spiritual, and happen, as the HART Act does not impose
appears to work is because the surrogate cultural perspectives in society should be a statutory duty on parents to disclose this
mother induces dissociation (called considered and treated with respect. information to donor-conceived children.
‘distancing’ by fertility psychologists) from While Mäori views are not Suggestions by legal scholars that birth
her body in order to collaboratively project homogeneous, a child born from a certificates be annotated to include the
the pregnancy onto the intended mother, surrogate pregnancy arrangement could child’s genetic and birth history (donors’
thereby facilitating easy relinquishment of still have ties to the whänau. They would and surrogates’ identities) could be of
the baby (Teman, 2009). If New Zealand is retain their whakapapa and social identity benefit here, but Van Zyl and Walker are
to adopt a similar system, a much greater and would be included in the iwi. Not only not advocating this as part of the
emphasis on counselling support and is this spiritually significant; it may have professional model.
therapy will be a necessary component of social and economic implications under
the model. the Waitangi Tribunal settlement process, Conclusion
A third criticism relates to the language as one fertility counsellor in study 2 This article offers a conceptual toolkit
of enforceability, which is contrary to the commented: based on sociological analysis of research
notion of relational gifting that governs findings to frame the motivations of
For some Mäori who are, you know
institutional ideas and conduct about surrogate mothers and the perspectives
into their culture, or immersed in their
altruistic surrogacy that influence the of various professionals who interact
culture, it’s a difficult thing because it’s
surrogate mother’s desire to elevate her with them. If New Zealand legislation
like well, okay, so if you go down blunt
relationship with intended parents beyond and policy around assisted human
lines, this baby then whakapapa’s to
the contractual (Berend, 2016). reproduction in relation to surrogacy
these people, but if you’re talking
Enforceability is based on a model of social is updated, this should be more than a
socially well, then they whakapapa to
relations that pivots around the concept of legal (and philosophical) matter, as one
these people, and then you know, the
‘relinquishment’. This involves ‘giving up’ of Wilson’s lawyer participants points
strange things that you end up talking
and signing away a relationship with the out (Wilson, 2018, p.73). More empirical
about, like well, what if they want a
baby in the interests of the intended research, documenting qualitative
scholarship? … You’ve got to have at
parents. The idea of relinquishing the baby, information from participants and service
least, I guess, two generations, you’ve
as an individuated entity, does not account users occupying different perspectives
got to know your parents, and you’ve
for the surrogate mother’s guardianship of in this domain, needs to be undertaken.
got to know your grandparents to be
the baby at birth, her relationship with the Alongside surrogates and intended
able to do it, and then it’s like, oh well,
intended parents, or different cultural parents, the voices of donor-conceived
what about … you know, what about
views of bodily donation in relation to persons, counsellors, psychologists and
land claims?
social identity (Glover and Rousseau, social scientists need to be heard in these
2007). In line with the concept of gift exchange, debates. And any envisaged changes to
Furthermore, the introduction of an relinquishment of the baby could not only legislation need to be flexible enough to
enforceability clause does not align with symbolically sever the child’s relation to its accommodate multiple pathways to family
the HART Act section 4, principles e, f, and birth mother, it could potentially break the formation without jeopardising cultural
g. These principles state that: (e) donor child’s relationship to the kinship network. and situational diversity.
offspring should be made aware of their While policy around donor registration is
genetic origins and be able to access enormously helpful in enabling offspring 1 This study received funding from the FHSS at Victoria
University of Wellington (#217783; #219294) and Human
information about those origins; (f) the to contact their donor ‘progenitors’, this Ethics Committee approval (#24373).
needs, values, and beliefs of Mäori should only works if a person knows they are
References
Alawi, S. (2015) ‘Highlighting the need to revisit surrogacy laws in New Cannold, L. (2005) What, No Baby? Why women are losing the freedom to
Zealand’, New Zealand Law Journal, October, pp.352–5 mother, and how they can get it back, Fremantle: Curtin University
Allan, S. (2017) ‘Governing transnational surrogacy practices: what role Books
can national and international regulation play?’, in M. Davies (ed.), Casey, M. (2014) ‘Surrogacy in New Zealand: the current landscape’, in
Babies For Sale?, London: Zed Books International Adoption and Surrogacy: family formation in the 21st
Anderson, L., J. Snelling and H. Tomlins-Jahnke (2012) ‘The practice of century, Wellington: NZLS CLE Ltd
surrogacy in New Zealand’, Australian and New Zealand Journal of Ceballos, M. (2019) ‘Parenthood in surrogacy agreements: a new model to
Obstetrics and Gynaecology, 52, pp.253–7 complete the puzzle’, New Zealand Law Journal, 9, pp.123–37
Berend, Z. (2016) The Online World of Surrogacy, New York: Berghahn Coney, S. and A. Else (1999) Protecting our Future: the case for greater
Braun, V. and V. Clarke (2013) Successful Qualitative Research: a practical regulation of assisted reproductive technology, Auckland: Women’s
guide for beginners, London: Sage Health Action Trust
Page 24 – Policy Quarterly – Volume 16, Issue 1 – February 2020Fertility Associates (2019) ‘Becoming a donor’, http://fertilityassociates.co. Ragoné, H. (1994) Surrogate Motherhood: conception in the heart,
nz/pathway/becoming-a-donor/ Colorado: Westview Press
Gilman, L. (2018) ‘Toxic money or paid altruism: the meaning of payments Salmond, A. (2012) ‘Ontological quarrels: indigeneity, exclusion and
for identity-release gamete donors’, Sociology of Health and Illness, 40 citizenship in a relational world’, Anthropological Theory, 12 (2),
(4), 702–17 pp.115–41
Glover, M. and B. Rousseau (2007) ‘Your child is your whakapapa’: Mäori Shaw, R.M. (2008) ‘Rethinking reproductive gifts as body projects’,
considerations of assisted human reproduction and relatedness’, Sites, Sociology, 42 (1), pp.11–28
4 (2), pp.117–36 Shaw, R.M. (2015) ‘Expanding the conceptual toolkit of organ gifting’,
Imrie, S. and V. Jadva (2014) ‘The long-term experiences of surrogates: Sociology of Health and Illness, 37 (6), 952–66
relationships and contact with surrogate families in genetic and Shilling, C. (1993) The Body and Social Theory, London: Sage
gestational surrogacy arrangements’, Reproductive Biomedicine Online, Teman, E. (2009) ‘Embodying surrogate motherhood: pregnancy as a
29 (4), pp.424–35 dyadic body-project’, Body and Society, 15 (3), pp.47–69
Mauss, M. (1990) The Gift: the form and reason for exchange in archaic Van Zyl, L. and R. Walker (2015) ‘Surrogacy, compensation, and legal
societies, New York: W.W. Norton parentage: against the adoption model’, Bioethical Inquiry, 12,
Mead, H.M. (2003) Tikanga Ma-ori: living by Ma-ori values, Wellington: Huia pp.383–7
Publishers Walker, R. and L. Van Zyl (2017) Towards a Professional Model of
Oranga Tamariki (2019) ‘Adopting a child born via surrogacy’, https://www. Surrogate Motherhood, London: Palgrave Macmillan
orangatamariki.govt.nz/adoption/surrogacy/ Wilson, D. (2018) ‘Reflecting on surrogacy: perspectives of family lawyers’,
Powell, R. (2017) ‘International surrogacy and parenthood in New New Zealand Family Law Journal, 9 (5), pp.67–77
Zealand: crossing geographical, legal and biological borders, Child and Wilson, D. (2019) ‘The emerging picture of the role played by surrogacy
Family Law Quarterly, 29 (2), pp.149–64 contracts in New Zealand’, in A. Masselot and R. Powell (eds),
Powell, R. and A. Masselot (2019) ‘Introduction’, in A. Masselot and R. Perspectives on Commercial Surrogacy in New Zealand: ethics, law,
Powell (eds), Perspectives on Commercial Surrogacy in New Zealand: policy and rights, Christchurch: Centre for Commercial and Corporate
ethics, law, policy and rights, Christchurch: Centre for Commercial and Law
Corporate Law
Policy Quarterly – Volume 16, Issue 1 – February 2020 – Page 25You can also read
