Substitutes are legal in New Zealand if done altruistically, in which the substitutes donate their services without any compensation, without any compensation beyond the scope of expenditure. Commercial Surrogacy, where a replacement is paid in addition to cost coverage, is not legal. There are no special laws and regulations relating to surrogacy, although recent surrogacy cases have led to a number of changes. New Zealand is a party to the UN Convention on the Rights of the Child, and ratified it in April 1993. The main principle of the Convention is that the best interests of the child are paramount, which should include all surrogacy agreements and regulations. The lack of clear surrogacy laws in New Zealand has caused many couples to engage in reproductive tourism to ensure successful surrogacy. It has the potential to significantly impact on the human rights of all parties involved.
Video Surrogacy in New Zealand
Replacement household law
New Zealand has no special surrogacy laws. However, there are provisions in other actions relating to surrogacy arrangements. The Human Assisted Reproductive Technology Act 2004 ("HART Act") is the main instrument dealing with the legality of surrogacy. The purpose of the HART Act is to make regulations for cases involving the reproduction of human assistance, but the lack of specific surrogacy laws has led to a HART Act covering all surrogacy cases in New Zealand.
The HART law provides that surrogacy arrangements are not, of themselves, illegal, but can not be exercised by or against anyone. The HART Act also makes it illegal to give or receive valuable considerations to participate in or regulate surrogacy, but also stipulates that there may be exceptions to this, being situations where reasonable and necessary costs occur. The provision that surrogacy arrangements can not be enforced against someone who seems to offer little protection for one of the parties involved; no party can ensure that the agreement is met. Any disputes concerning babies born of surrogacy will be resolved by Family Court, and judges will make their decisions in the best interests of the child.
Guidelines on Surrogacy Arrangements involving Assisted Reproduction Procedures state that the approval of the ethics committee must be obtained before the surrogacy agreement is allowed to proceed. The Ethics Committee on Reproduction of Reproductive Technology shall determine, among other considerations and other mandatory requirements, that:
- If any parent wishes, he will be the genetic parent of the child produced; or
- If there are two parents who intend, at least one genetic parent of the child is produced; and
- There has been discussion, understanding, and declared intentions between the parties regarding the daily care, guardianship, and adoption of every child produced, and any ongoing contacts; and
- Each party has received independent medical advice; and
- Each party has received independent legal advice; and
- Each party has received counseling in accordance with the current Fertility Service Standard;
The Adoption Act of 1955 is also relevant to surrogacy, since, under the Ordinance, it is an offense to give or receive any payments or remuneration with consideration of adoption or adoption proposed, and a child must be adopted by genetically oriented parents or who intend to order they have legal status in relation to the child. The Status of Acting Children 1969 further states that the biological mother, the successor, is the child's official mother regardless of the child's genetic origin, and the legitimate father is a surrogate partner if she consents to surrogacy.
The lack of specific laws regarding surrogacy arrangements has led to calls for reforms, in particular reforms to allow commercial surrogacy.
Maps Surrogacy in New Zealand
International treaties affecting surrogacy
New Zealand is bound by its international treaty, including the Universal Declaration of Human Rights, the United Nations Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women and the International Covenant on Civil and Political Rights.
The Convention on the Rights of the Child provides that ratifying States, where New Zealand is one, must act in the best interests of the child, and that every child has basic rights, including the right to life and the right to be reared by their parents in in family.
The Universal Declaration of Human Rights provides basic human rights, in which each party to the surrogacy treaty is entitled. While an unborn child has no right to live in New Zealand, once the child is born, it is subject to the full rights granted to everyone in international law.
Adoption of child
After a child is born as a result of a surrogacy agreement, the child must be formally adopted by the intended parent. The Adoption Act of 1955 regulates this and handles matters such as the approval of who is required and who the legitimate parent. If a child is born overseas and taken to New Zealand, a temporary visa must be provided to the child and ordinary residence must be decided by the court. If the court concludes that the child is an ordinary citizen of New Zealand, the 1955 Adoption Act applies, but if it concludes that he is a resident of the other State then the 1997 Intercountry Act will apply to the situation. The Court of Appeal establishes a test in which a child's residence may be decided. In general, the test is to see the intentions of the parents and where they want the child to live.
There is a great debate about whether there are human rights abuses in surrogacy cases. It is clear that the right to discriminate is a fundamental human right. On an international scale the Universal Declaration of Human Rights creates such protection and at the domestic level of the 1993 Human Rights Act, in particular section 21. Same-sex couples, for many years, have argued that they must have the right to enter into a surrogacy treaty. In 2013 same sex marriages legalized in New Zealand due to amendments to the Marriage Act of 1955. The courts have the power to make an adoption order "on the adoption of 2 couples together with respect to the child" under section 3 of the Adoption Act. There is much debate over whether same-sex couples meet the definition of "spouse" for the purposes of the Adoption Act but since the legalization of same-sex marriage, the courts have now concluded that they are indeed within the required definition. This is confirmed by the family court in the case of In the Matter of C (Adoption) [2008] NZFLR 141. The implication is that this argument relates to human rights violations against same-sex couples in adoption and surrogacy. case, has been canceled because the court can now make an adoption order for same-sex couples.
International surrogacy settings
As New Zealand does not allow commercial surrogacy, many New Zealand couples choose to enter into international commercial surrogacy arrangements. This involves the birth of a child to a surrogate mother in one country, where parents are genetically or who wish to come from another country. There is no special law in New Zealand that addresses the arrangement of international surrogacy, so in all cases where the spouse arranges for a child to be born abroad and brought back to New Zealand, all New Zealand laws will apply. This arrangement has significant legal complexity, as well as the high risk of humanitarian problems that may affect surrogate mothers and children.
The Ministry of Vulnerable Children has issued state warnings to jurisdictions that potential parents are advised to avoid, which include:
- India
- Thailand
- Mexico
- Nepal
- Cambodia
Human rights implications
Increased international surrogacy arrangements have led to a number of concerns about the human rights of children, surrogate mothers and genetic or targeted parents.
Right to family life
When a child is born through the arrangement of international surrogacy, under New Zealand law, parents who are of genetic or intent nature will have no legal relationship with the child at birth; the child's legal parent will be the surrogate mother and her partner. It is arguably violating the right to family life, such as when a surrogate mother carries and gives birth to a child, she does not always have family relationships. The HART Act states that children have the right to information about their biological background and genetic origins; this will show that children have an inherent legal right to know their family, regardless of the lack of legal rights of genetic parents.
The right to citizenship and citizenship
Under the Convention on the Rights of the Child and the ICCPR, a child is entitled to citizenship from birth. This right is often violated in practice in the setting of international surrogacy, in which the relevant states refuse to recognize a child born through this arrangement as a citizen, since the law in every country is often contradictory in relation to the offspring and child law citizenship. If it is not possible to determine the nationality of a child, he will not be able to obtain a passport to travel and improve the state without the state and lack of offspring. While a child's birth state can recognize the intended or genetic parent as a child's legal parent, New Zealand does not. Children born as a result of international surrogacy arrangements do not qualify for New Zealand citizenship by offspring, and thus the only way that the intended parent can become a child's parent law is through adoption.
Adoption in New Zealand after the arrangement of international surrogacy is complex, as New Zealand is a signatory and is bound by the Hague Convention on Protection and Cooperation in Respect for Inter-Country Adoption, brought into New Zealand legislation by the Intercountry Act 1997. Enforcement this applies "where a child accustomed to residence in a Contracting State... has been, is or will be transferred to another State Party". While this enforcement is associated with international adoption and not specifically with international surrogacy, they have been used by New Zealand courts where children have been brought back to New Zealand by parents who intend to go through the adoption process. Family Courts tend to find that the requirements of inter-state adoption do not apply in such cases, because children born in international surrogacy arrangements are meant to have the same habitual dwelling with the intended parent, not where the child was born, which is often the place live surrogate moms, because they often do not have parents who can be legally identified at the site. Further, the Convention on the Rights of the Child states that, in adoption, the best interests of the child are paramount, especially where there is inter-country adoption.
Right to get to know your parents
The Convention on the Rights of the Child also states that a child has the right to know and be cared for by his parents, and that will not be separated from them. In a surrogacy setting, the intended parent or genetic is arguably the parent of the child, not the surrogate mother or her partner. However, the law surrounding surrogacy fails to recognize this, and instead provides that the legitimate parent of the child is the surrogate mother and her partner. This can be a problem in which the child's genetic parents are culturally different from the surrogate mother, which often occurs in the setting of international surrogacy.
Alternate substitute
One of the concerns that arise in international surrogacy arrangements is the right of surrogate mothers, especially when it comes to informed consent and exploitation. It is acceptable that under any circumstances surrogate mother is not forced by the intended parent or someone else to enter surrogacy arrangement. In all cases, there must be informed consent before the surrogacy arrangement can proceed. Before allowing a child to obtain a temporary travel visa to enter New Zealand for adoption, the Immigration Ministry will consider whether there is an informed consent from the surrogate mother. However, it has been widely questioned whether women in poor countries can actually provide informed consent for surrogacy arrangements. Women in poor countries where international surrogacy arrangements typically occur are often uneducated and poor, and therefore may not be able to fully understand all the implications of surrogacy, and therefore, the idea of ​​high payouts can be a form of coercion or undue influence.
High prices paid by intentional or genetic parents may also lead to unfair requirements placed on surrogate mothers during pregnancy, which may interfere with their right to privacy and the right to self-determination. For example, an intending parent may ask a surrogate mother not to travel to certain places or do certain things when she is pregnant, to protect pregnancy and child.
References
See also
- Human rights
- Children's rights
- Declaration of the Rights of the Child
- Surrogacy
- Women's rights
- Convention on the Elimination of All Forms of Discrimination Against Women
- Reproduction with human help
External links
Services for Vulnerable Children " Adopt a Child Born Through a Baby Substitute "
University of Canterbury Surrogacy Law Project "Rethinking Surrogacy Law"
Source of the article : Wikipedia
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