22 March 2022
There are a known number of babies currently growing in utero of overseas surrogates for births commissioned by New Zealand citizen or resident visa holder parents. There are likely to be further babies who are not yet known about. Due to the consequences of the outbreak of COVID-19 it is not always possible to obtain, in a timely manner, a passport from the issuing authority in the child’s country of birth. This has the potential to result in surrogate babies being unable to travel to New Zealand with their commissioning parents.
The usual process is for an overseas passport to be issued for the baby in the country where they are born, DNA testing to be done, and a New Zealand visitor visa applied for and issued by the Minister of Immigration in accordance with non-binding Guidelines agreed by Cabinet in 2010.
Upon arrival in New Zealand, the adoption application is filed with the Family Court and processed, and a report under section 10 of the report directed, and a hearing allocated once the report is completed. If a final adoption order is granted and where the commissioning parents are New Zealand citizens or are entitled to be in New Zealand indefinitely, citizenship and, upon application, a New Zealand passport are issued. This normally occurs about 6-9 months after the arrival of the baby in New Zealand.
The Adoption Act 1955 permits an adoption application to be considered by the Court when the Applicants and the baby are not physically in New Zealand.1
For those babies where COVID-19 related delays in issuing documentation in the overseas country are present, with the use of AVL/VMR and electronic filing, together with a streamlined registry process and the use of specific judges to oversee this work, the applications can be determined remotely.
This will enable those affected babies in international surrogacy cases to be adopted by their commissioning parents and to consequently receive New Zealand citizenship by descent and a New Zealand passport prior to travelling to New Zealand. No Ministerial request for a visitor visa will be required.
It is not intended that this protocol will undermine or replace the existing framework under which the New Zealand government manages international surrogacies. This protocol instead aims to provide a temporary, targeted response to the specific issue of the inability to obtain a passport in the country of the baby’s birth.
This protocol will only apply in overseas surrogacy cases where passports in the country of the baby’s birth cannot be obtained in a timely manner, due to the effects of Covid-19, and this directly and seriously impacts the return of the baby and commissioning parents to New Zealand.
Applicants who meet the above criteria will be able to apply for adoption orders remotely under section 3(1) of the Adoption Act.
Oranga Tamariki—Ministry for Children social workers will vet applicants before the birth, wherever possible in person but by audio visual link where this is not possible. An interview will also occur after the birth by audio visual link. Oranga Tamariki will provide the Family Court with reports under s 10 of the Adoption Act. The reports will cover the factors contained in the non-binding 2010 guidelines agreed by government for use when considering applications for adoption related to international surrogacy cases. Ideally, the Oranga Tamariki assessment of the applicants is to commence before the birth of the baby. The social workers should have access to the following documents when completing their reports:
The protocol will be in operation until 23 September 2022. It will then be reviewed to assess its functioning, including a consideration of the ongoing necessity for remote determinations if there are no longer difficulties in obtaining a passport in the country of the baby’s birth.
Further information: See this document for a useful summary of the key messages from this Protocol.
1. Adoption Act 1955, s 3(1)
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