Re Spiegler [2020] NZFC 2872

Published 03 August 2020

Adoption application — surrogacy — same-sex couple — international birth — habitual residence — special circumstances — Adoption Act 1955, ss 3, 10, 11 & 13 — Adoption (Intercountry) Act 1997, s 4 — UN Convention on Intercountry Adoption. This was an application by a couple to adopt a child. One of the men was the biological father of the child, who had been conceived by way of a surrogacy arrangement overseas. In determining whether the Court could grant the adoption, it had to determine whether the adoption was regulated by the Adoption (Intercountry) Act 1997 (if so, the Court would not have jurisdiction to determine the matter) or the Adoption Act 1955 ("the Act")—in which case the elements of the Act had to be satisfied. Under the Adoption (Intercountry) Act, the matter to be determined was where the child is "habitually resident". The Judge found that despite being born overseas, the newborn child did not acquire habitual residency in that country in the 49 days he was there with the applicants. The applicants, who had been married for some 6 years and were themselves from overseas, had New Zealand permanent residency and the child had been granted a temporary visitor's visa to enter New Zealand with them. Having decided that the 1955 Act applied, the Court had to be satisfied that the applicants were spouses, that they were both over 25 years of age and were at least 20 years older than the child, that they were fit and proper persons to care for the child and that the child's welfare and best interests would be promoted by the adoption. The applicant spouses were both of good character, had the means to raise the child in a loving and stable environment in New Zealand and satisfied the age criteria of the Act. One final consideration to be determined was whether to make an interim adoption order or a final order. Special circumstances had to be present for a final adoption order to be made. The Judge considered that special circumstances were present in the applicants' situation, and a final adoption order was made. Judgment Date: 1 May 2020. * * * Note: names have been changed to comply with legal requirements. * * *