When Children of New Zealanders Have no Right to Citizenship: the Challenges of International Surrogacy and Immigration Law

Abstract

New Zealand couples struggling to have children are organising surrogacy arrangements in places like India and California, where they are paying a surrogate mother to give birth to their child. Even though the commissioned child may be genetically related to his or her New Zealand parents, under New Zealand law the woman who gave birth to the child is recognised as the baby’s mother. This status law is causing immigration nightmares for New Zealand parents, as the commissioned child is not entitled to citizenship by descent because he or she is not legally recognised as the child of the commissioning parents. There is no immigration policy currently being developed to manage these international surrogacy cases, despite the increasing numbers of cases in recent years. This paper examines the immigration problem that international surrogacy is causing, and explores the approaches being taken by Australia and the United Kingdom, in order to seek a suitable policy solution that could function in New Zealand. It is clear that neither of these jurisdictions has found a perfect solution to this immigration issue, but they both serve as constructive comparatives for New Zealand to take inspiration from.