New Zealanders are travelling overseas to illegally commission surrogate babies from Thai women, and bringing them back home to adopt them despite opposition from Oranga Tamariki.

It’s a practice the agency has labelled a “concerning trend” and it said there had been five cases where surrogate parents have flouted international law to have children in recent years.

In one of those cases a gay man paid a Thai fertility clinic worker to subvert the country’s strict surrogacy laws, which prohibits foreigners from commissioning children from surrogate mothers.

The man paid a “significant” sum of money, according to a Family Court ruling, to find a surrogate and then his sperm was used to fertilise a donor’s egg.

Once back in New Zealand, the man applied to the Family Court to adopt his son so he could be legally recognised as his father.

Under the current legislation, which was written in 1955, every parent of a child born by surrogacy, whether the practice is illegal in the country of birth or not, must effectively adopt their own child even if they have a genetic link to them.

This is because when the law was written more than 70 years ago lawmakers didn’t foresee the advances in fertility medicine such as in vitro fertilisation.

That legislation is currently before a select committee after the Improving Arrangements for Surrogacy Bill was first tabled before Parliament in 2022.

The proposed law would effectively create a mechanism that accounts for these changes in science, technology and culture and mean that parents, lawyers and judges won’t need to rely on a piece of legislation that was never intended to account for surrogacy.

Surrogacy for foreign nationals was outlawed in Thailand in 2015. Photo / 123rf

However, it’s unlikely to change things for people who commission surrogacy arrangements in countries where it’s illegal. They will still come under scrutiny from the courts when they attempt to bring their children back into New Zealand.

It’s a practice that Oranga Tamariki says is occurring more frequently, at least in Thailand, and there’s a possibility New Zealanders desperate to have children will look further abroad to other countries as well.

‘Concerning trend’

In the case of the gay man who paid a Thai surrogate, which made its way through the Family Court last year, Judge Belinda Pidwell noted that the law around surrogacy was complex and there was no statute in New Zealand to provide clarity.

“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.”

However, Oranga Tamariki objected to the adoption being granted by the courts, despite finding that the father was the only real parental option for the child and that, barring the illegal way in which the baby was created, he was an otherwise suitable parent.

Lawyers for the agency tabled a report from a senior adviser in its Intercountry Adoption Team, which identified a “concerning trend where New Zealanders have engaged in surrogacy around involving Thai surrogates, despite the illegality”.

“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,” the report read.

Oranga Tamariki says the release of its report could cause diplomacy issues, but didn't give the courts any evidence about why. Photo / NZME

Oranga Tamariki refused to release the full report to NZME under the Official Information Act, and then opposed its release through the Family Court claiming that it could impact New Zealand’s diplomatic relations with other countries. However, it didn’t provide any evidence about that specific impact.

Judge Pidwell recently released the full report to NZME, which outlines how there has been an increased demand for women to become surrogates, and this demand has caused an increase in the number of women being trafficked from countries where the practice has been banned.

The report found that between 2015 and 2020 the agency wasn’t aware of any evidence New Zealanders had been involved in these situations, but from 2020 it had encountered five cases where a commercial surrogacy arrangement had been commissioned by Kiwis involving Thai surrogates.

Three of these cases have involved the transfer of the surrogate across international borders for the purpose of an embryo transfer. In the other two cases, the mothers were transferred to another country to give birth.

“Not only do these emerging trends demonstrate New Zealanders are breaching and demonstrating disregard to Thailand’s domestic laws, but there are also significant concerns about the risks these practices pose for the safety and wellbeing of surrogates and the children born via the arrangements,” the report reads.

“Whilst we have noticed these examples of illegal practices have occurred in Thailand, we are mindful to the possibility of surrogacies being commissioned in other countries where it is illegal and would place similar scrutiny on New Zealanders engaging in illegal surrogacy arrangements in any jurisdiction.”

In New Zealand there is currently no legal pathway for a surrogate child to obtain residency except via an exemption from the ministers of immigration or internal affairs, or through the antiquated Adoption Act.

Oranga Tamariki receives referrals from commissioning parents, private lawyers or requests from the Family Court to complete reports under the Adoption Act, which assesses their suitability to adopt.

Since international surrogacy was outlawed in Thailand in 2015, Oranga Tamariki as well as the Ministry of Social Development, Ministry of Foreign Affairs and Trade, Immigration New Zealand and the Department of Internal Affairs have all published advice for New Zealanders about the law change.

Those agencies held a meeting in January 2024 to discuss the trend where New Zealand was flouting these rules. Then in May, Oranga Tamariki effected a policy to refuse to provide pre-court adoptive applicant assessments for people who commission surrogacy in a country where it is illegal.

NZME asked Oranga Tamariki questions about whether it had liaised with the Thai Government about its concerns, about other countries where New Zealanders were commissioning illegal surrogacy and about its submissions to the new bill.

New Zealand First MP and Children's Minister Karen Chhour says she hasn't received advice from Oranga Tamariki about the report. Photo / Mark Mitchell

In an emailed statement the agency did not respond to those questions, instead noting that following an inter-agency meeting in 2024 Oranga Tamariki put in a formal policy to not support an immigration exemption for anyone commissioning an illegal surrogacy.

“As outlined, we do not undertake any pre court assessments of adoptive applicants who commission an international surrogacy in a country where it is illegal but will undertake such an assessment if we are required to do so by the court once an adoption application is received,” the spokesperson said.

“Oranga Tamariki has contributed along with other agencies to the review of surrogacy that has been led by the Ministry of Justice.

“Through the course of that work, discussions were held about the issue of illegal surrogacy actions.”

A spokesperson for the Minister for Children, Karen Karen Chhour, confirmed her office had not received any reports or advice from Oranga Tamariki about the illegal surrogacy its staff had identified.

The Thai Embassy in Wellington did not respond to questions about whether it had seen the report, and was concerned by it.

‘Reproductive optimism’

Domestic surrogacy, where someone volunteers to carry a baby for someone else, is legal in New Zealand, as long as no money changes hands.

However, there’s also no legal pathway to enforce this arrangement meaning that if the birth mother wants to keep the child, she can.

If in vitro fertilisation needs to be done to get a surrogate pregnant then it has to be approved by the Ethics on Human Assisted Reproductive Technology committee (Ecart). Oranga Tamariki will also assess the intended parents for their suitability.

According to official information released by Oranga Tamariki there were 89 domestic surrogacy adoptions in New Zealand between 2020 and 2024, and over the same period there were 69 from international surrogacy arrangements.

Barrister Margaret Casey, KC, says not much will change under proposed new legislation when it comes to illegal surrogacy. Photo / Supplied

Margaret Casey, KC, is one of three legal experts who assist with surrogacy arrangements in New Zealand and told NZME under the new proposed surrogacy law, people would no longer have to adopt their own genetic children, rather it would become a parenting order.

“The courts will still be juggling the same kinds of issues, it will just be through a different lens,” she said.

“Illegal surrogacies will still come before the court, and the court will still look at the background and make a decision about whether or not when you balance it all out it can make a parentage order.”

In terms of illegal surrogacy, Casey said not much would change under the new legislation, and there were already checks and balances in place that served to disincentivise people deliberately pursuing illegal arrangements.

“You may not get to live where you want or with your child for a long time, you may have to give detailed evidence at a court hearing, be subject of further reports from Oranga Tamariki… you will live in this state of uncertainty and probably panic for a long period of time,” she said.

In all five cases in recent years where New Zealanders have commissioned babies in Thailand, the New Zealanders who had paid a surrogate claimed that they didn’t know it was illegal, despite clear advice from agencies in New Zealand to the contrary.

Casey says this is likely born from optimism, rather than wilful blindness.

“People are paying too much attention to the process of creating the baby and not concentrating on whether they can bring the child home and how long it will take, and is there anything I’m doing that will be a problem,” she said.

“Do your research and ask questions. If you don’t do that and rely on an agency whose business is reproductive optimism, then you might not look as deeply as you should.”

Associate Minister for Justice, Nicole McKee said the Improving Arrangements for Surrogacy Bill won’t prevent people from seeking illegal surrogacies abroad.

“It will expressly enable the Family Court to scrutinise these arrangements. The court will be able to consider whether it is in the surrogate-born child’s best interests for the intended parents to become the child’s legal parents,” she said in a statement.

Another expert in New Zealand surrogacy law is Jennifer Wademan, who agreed that in her experience there’s nothing Machiavellian in parents seeking out illegal surrogacy.

“I’ve never come across a case where someone has had the knowledge that it is illegal and still gone ahead. We simply point them in a direction where people can do it legally,” she said.

Wademan said she primarily gets two kinds of clients; those who work with her from the start, and those who only come to her once they realise their baby’s foreign birth certificate won’t get them through the border in New Zealand.

“By the time these families are turning to international surrogacies they’ve been through hell and back and their desire to have a child is so great, it’s optimism rather than deliberate avoidance of research,” Wademan said.

“I think for many it’s putting the blinkers on. As human beings we can all understand that.”

As for Oranga Tamariki identifying cases of this happening, Wademan said that while the numbers might appear small, a spike of five is quite significant in the world of international surrogacy.

“It’s enough for me to go, hmm, I don’t like that,” she said.

In terms of the proposed law change, Wademan doesn’t see it changing much in the way of illegal surrogacy, but for domestic parents she predicts it will change the landscape altogether for an area of law that is particularly ad hoc.

“Every day we get a new challenge,” she said, “We’re having to be innovative about legislative process about science and culture because our legislation doesn’t provide for it.

“The international landscape will always be more complex because we’re dealing with another country’s laws that we have no control over.

“At the end of the day, these are overwhelmingly New Zealanders who just want to be parents so badly.”

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.