Under the current legislation, which was written in 1955, every parent of a child born by surrogacy must effectively adopt their own child, even if they have a genetic link to them.
This legislation has meant that some New Zealanders have sought surrogacy arrangements overseas, such as in Thailand, despite the practice being illegal there.
He then had to apply to the court to adopt the baby boy as his own child.
The presiding judge said that the court’s hand was essentially forced because if it didn’t grant the order, the child would be left stateless and in a "legal vacuum" because he had no right to remain in Georgia but also couldn’t leave.
The judge described it as a "fait accompli", meaning that essentially the child’s fate had already been decided and could not be changed, before the case was even filed.
According to the facts of the recently released judgment, the man and a woman he claimed was his de facto partner signed an agreement with a reproductive agency in Georgia, which specialised in both IVF and in sourcing surrogate mothers.
The agreement with this agency required that the pair be legally married, as per Georgian law, or had been together for at least one year and had a medical reason for the surrogacy. The agency simply accepted that because of the woman’s age, pregnancy was risky.
The pair were arranged to be married, but no ceremony ever eventuated, and they lived together for only some weeks.
The man said his parents suggested surrogacy, and that he’d heard about the agency from a friend.
The surrogate is a 38-year-old woman from Uzbekistan. No information was provided on whether she normally resided in Georgia or had travelled there for the surrogacy arrangement.
The man had only met her once when he travelled to Georgia to provide a sperm sample, and the implant was made in November 2024.
By 2024, the man and his allegedly de facto partner had split up, but he continued with the surrogacy process alone. He told the court that he’d informed the agency in early 2025 and that they’d had no concerns about his change in relationship status.
At this point, the surrogate was six months pregnant.
He signed a power of attorney to enable the clinic to complete all the necessary post-birth paperwork, and the agency obtained the Georgian birth certificate for the baby, which states that he, the man, is the child’s father, while his allegedly de-facto partner is listed as the mother, not the surrogate.
‘Uncomfortable facts’
Gestational surrogacy is currently legal in Georgia, and at birth, the intended parents are automatically recognised as the legal parents while the surrogate has no parental rights nor obligations.
Only heterosexual married couples (or couples in a de facto relationship for at least one year) are eligible to enter a surrogacy contract.
In June 2023, the government of Georgia announced a plan to ban commercial surrogacy for foreigners, but the legislation has not yet been passed.
New Zealand law does not currently afford any automatic rights to the intending parents of a child born via surrogacy. At the time of birth, the child’s legal parents are the surrogate mother and partner, and a formal adoption process is required to complete the arrangement.
The same is true if a child is born via surrogacy overseas. Even if the child shares DNA with a New Zealander, they do not automatically acquire citizenship.
Instead, the only avenue is through the Adoption Act.
The Improving Arrangements for Surrogacy Bill would see it more in line with the current Georgian law, but it is still before select committee at the time of writing.
Family Court Judge Belinda Pidwell said that on the evidence before her she was satisfied that the man and the woman he claimed was his partner were not in a de facto relationship, and it was unclear what steps the Georgian agency took to verify their relationship status.
"There is an uncomfortable inference available that [the man’s] relationship with [the woman] existed purely for the purpose of satisfying the requirements of the surrogacy agreement," Judge Pidwell said.
"Once the pregnancy was viable, the relationship ended. Without her, [the man] would not have been eligible to enter into a surrogacy agreement in Georgia."
Judge Pidwell said that courts around the world had grappled with cases where surrogacy laws clash with children who have already been born, sometimes illegally.
"The focus of the New Zealand courts, however, is to honour the child’s rights, rather than punish the parents," Judge Pidwell said.
In her judgment, Judge Pidwell said that there were a number of aspects of the creation of the baby in this case that caused "discomfort" but his rights must take precedence.
"Should [the baby] pay the ultimate price of losing the only parent who wants him and can satisfactorily care for him, because his father entered into an arrangement with a woman in order to gain access to the procedure in Georgia?"
"The high-level concern is this: If New Zealand courts grant adoption orders conferring parentage and citizenship rights to children born of illegal surrogacy arrangements, that could be regarded as endorsing the process and upholding illegal contracts."
Judge Pidwell said that ultimately no illegality could be clearly identified, but there were instead a number of "uncomfortable facts" which, when considered together, indicated the surrogacy agency had enabled the man to create a child and overlooked or turned a blind eye to the rights of the surrogate mother.
Ultimately, the adoption order was granted, with Judge Pidwell noting that her primary consideration was the child’s welfare, and this meant being looked after by his father, who was the only family member available to him.
By Jeremy Wilkinson
