Families formed through surrogacy are still waiting for law reform, five years after the Law Commission flagged urgent changes and more than three years after legislation was first introduced to Parliament.
The Improving Arrangements for Surrogacy Bill was designed to modernise New Zealand’s outdated framework, which requires intended parents to adopt their own children after birth. But the bill has stalled, leaving families navigating lengthy, invasive and costly processes at a time when they should be bonding with a newborn.
For Auckland couple Calvin Samuel and Edward Rawlings, the delay has real consequences.
Their son Cooper was born via traditional surrogacy, using Samuel's sperm and an egg from surrogate Kara.
Samuel said the idea had been a long time coming. "She'd always said she would do it for us, or for me so we sort of said to her, one day, 'would you do this?'."
However, in the eyes of the law, the pair were not legally Cooper's parents, and despite being Cooper’s biological father, Calvin was not recognised as a legal parent when his son was born.
"Filling out the forms the day he was born for his birth certificate was quite confronting because I was putting somebody else's name as father," he said.
For surrogate parents the adoption laws say they must adopt their own biological baby because the person carrying the child and their partner, if they have one, were the automatic legal guardians.
Fertility NZ chief executive Lydia Hemingway said laws were not keeping up with modern family building.
"That's a tough process especially at the beginning of a baby's life when you're wanting to embrace being new parents and enjoying this beautiful baby that you have."
The adoption process could take up to six months, with multiple assessments from Oranga Tamariki and a court hearing.
Samuel said the process was invasive, with the couple asked things like whether they were smacked as children and their mental health history.
Lawyer Stewart Dalley, who specialises in assisted reproductive technology and adoption via surrogacy, said the level of scrutiny can be disproportionate. Dalley was also the father of three children born through surrogacy.
"I remember on one of the visits we were asked to produce the WOF for the car," he said.
"I said 'why do you need the WOF for my car', and they're like 'well, if you're the type of person who would let your WOF expire, then you may be pose a danger to children'. In whose world, I don't know."
Dalley was an expert advisor to the Law Commission when it reviewed the surrogacy process in 2020-2021. That review led to the Improving Arrangements for Surrogacy Bill, which passed its first reading in 2022, but a change in government slowed momentum.
"I think it was a shame in terms of timing that the bill came through there was a change in government it rolled over but then it got picked up again... I do not understand why it's still sitting there."
Surrogacy arrangements can vary widely. Where couples go through a fertility clinic, applications must be approved by an ethics committee, and parties receive counselling and independent legal advice. Outside of clinics, there are fewer formal guidelines.
Dalley said despite couples like Calvin and Ed doing everything they could, outside of a clinic there are less guidelines for surrogacy.
"You may not have had any counselling, you might not have had any independent legal advice."
A select committee report on the bill was originally due in October last year but has been extended until April.
Associate Minister of Justice Nicole McKee said the delay reflected the need for a robust review.
"Let’s see what the report says — what the recommendations are and what we can and can’t move forward with," she said.
In the meantime, the uncertainty was influencing family planning decisions.
Samuel said he and Rawlings were having to think twice about having another child due to the invasive and expensive process with legal advice and counselling.
A select committee report is due back on April 1.
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