Payment and Reciprocity in Surrogacy Arrangements

Abstract

New Zealand’s surrogacy regime is currently subject to reform, some 20 years since the enactment of the Human Assisted Reproductive Technology Act 2003. Section 14, which imposes a broad but unclear restriction on payments in surrogacy arrangements intended to codify New Zealand’s position against commercial surrogacy, is being considered amongst these reforms. Under the current section 14, the broad scope of criminalisation creates a presumption that costs associated with a pregnancy ought to fall where they lie, and as a result surrogates risk material disadvantage by entering into a surrogacy arrangement. This paper considers the policy rationale for section 14 at its time of drafting, and how altruistic surrogacy and commercial surrogacy, have and continue to be understood (at both a policy and layperson level). Understanding these is necessary to provide insight into how section 14 has been interpreted and adhered to, and what measures might be necessary in reforming this to ensure support is actually made available to a surrogate.