The man, who can’t be named, cared for his son from the moment he was born and he was listed as the father on a Thai birth certificate.
The surrogate was listed as the mother but she signed an agreement that effectively relinquished custody and parental power of the child.
Once back in New Zealand, the man applied to the Family Court to adopt his son so he could be recognised as his father under New Zealand law.
However, Oranga Tamariki objected strongly to the adoption being granted by the courts, despite finding that the father was the only real parental option for the child.
It canvassed his personal background, personality and character, home environment, education and employment, finances, health, and conducted police checks. Nothing untoward or concerning was found.
The sole reason for Oranga Tamariki’s objection was the fact that the father had engaged in an illegal surrogacy process overseas.
One of its advisers in its inter-country adoption team said she had identified “a concerning trend where New Zealanders have engaged in surrogacy around involving Thai surrogates, despite the illegality”, which created a significant risk to international and diplomatic relations between the two countries.
“The concern is if children born of illegal surrogacy arrangements are allowed entry into New Zealand, and their parentage is then endorsed by an adoption order, that could be seen as an endorsement of unlawful actions,” their submissions read.
But for the illegalities in the creation of the child, Oranga Tamariki confirmed it would have assessed him as “fit and proper” and supported the adoption application.
The father told the court he now accepts that he entered into a surrogacy arrangement in a country that does not permit the practice for single, gay men.
He claimed he undertook research through the internet and through friends and was not aware it was illegal and when asked how he would explain his son’s birth story to him in an honest way later on, he said: “First of all, that’s a beautiful mistake I’ve made. I regret I may have committed a crime in Thailand but I never not in one minute regret having you in my life.”
Judge Belinda Pidwell said the Family Court couldn’t consider immigration issues, nor New Zealand’s international reputation and she had to apply the law.
That law, the Adoption Act 1955, has no provisions for a child that has been created in contravention to another country’s laws.
“For decades, Family Court judges have been applying the adoption law and commenting that it is in dire need of review to accommodate the changes in society and way children and families are created,” Judge Pidwell noted in her ruling.
“No government has yet made any changes, and thus the court must apply the law as it stands to each case before it.”
The Improving Arrangements for Surrogacy Bill is still before Parliament after being put forward by Tāmati Coffey in 2022 and proposes to make things easier for gestational surrogates.
For traditional surrogacies, it would remove the need for an adoption order and replace it with a parentage order.
“The law around surrogacy is complex, particularly in a cross-border situation. There is no statute in New Zealand (yet) to provide clarity,” Judge Pidwell said in her ruling.
“In those circumstances, it is not for the courts to punish the child that is born through an unclear process.”
Judge Pidwell found that the man was simply ignorant of the legalities of surrogacy and that without an adoption order, he and his child – “a healthy, happy baby who is very loved and well cared for” – would be in an untenable position.
“A number of illegal steps or breaches of laws occurred in the creation of [the child]. However, he has now been born, and as a result, has the right to grow and thrive, to have a nationality, and the right to know and be cared for by his parent,” her ruling reads.
“The irregularities in his creation, or the sins of his father, should not be visited upon him.”
Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.
