Couple who found surrogate on Facebook want law change

Lois and Stephen Caldwell* want a formal agency linking surrogates and donors so parents don't...
Lois and Stephen Caldwell* want a formal agency linking surrogates and donors so parents don't have to rely on Facebook to find a surrogate. Photo: Sylvie Whinray
Lois and Stephen Caldwell* didn't expect they'd have to use Facebook to find someone willing to carry their embryo, and give them a baby.

The couple, who've run the gamut of adopting their two children born by a surrogate, say the process is nothing like in the movies.

"You have to find your own surrogate. There's no list anywhere – it might be someone you know, a family member, or like us you have to find someone through social media," Lois says.

They want laws changed so others won't have to rely on this method because there's no formal agency linking parents with surrogates.

For Lois and Stephen*, their decision to use a surrogate was based on a devastating course of events that left Lois unable to carry a child. She was 30 when benign fibroids in her uterus led to a hysterectomy.

She was able to keep her ovaries, from which her eggs were harvested for the IVF process that followed.

By then they had settled on surrogacy, having also considered adopting.

"At the fertility clinic, we asked what to do because we had no clue where to begin.

"The nurse suggested social media, so we had a look on Facebook, and set up a page with our story on why we needed a surrogate."

They found a woman who would go on to carry their children.

The page they used has since been deleted but other forums are still available, although these pages don't advertise or link donors with surrogates.

"We did get a lot of messages, but a lot were from overseas," the Caldwells said of the call they put out.

"Our surrogate was keen, and it was the right timing for all."

Stephen says the process was comparatively fast. Some people spent years finding a compatible surrogate.

They say finding someone willing to carry and deliver someone else's child is perhaps the ultimate in altruism – a gift for which they're forever grateful.

Surrogates in New Zealand are not paid.

"You do need to find someone willing to do this. She was on the same page, looking to do this for someone," Lois says.

It's then a process of spending six months getting to know one another, before any part of the formal process begins.

That includes required counselling and liaison with a social worker who has to prepare a report for submission to the Ethics Committee on Assisted Reproductive Technology (Ecart).

The ministerial committee determines and monitors applications for assisted reproductive procedures and human reproductive research.

Once they got the green light, the biological process began.

Lois' harvested eggs were then fertilised in a lab, using Stephen's sperm. The embryos were allowed to grow before they could be safely frozen, and then one was thawed on the date it was due to be implanted in the surrogate.

Their eldest child is now 3 and a half, and the youngest is 18 months; each born from the same surrogate who lives in a different part of the country, which meant the Caldwells had to travel to attend the deliveries.

They said it was a smooth process, helped by the tremendous support from the hospital and lead specialist.

On each occasion, the Caldwells were able to take their babies home, just days after Caesarean delivery.

Lois was allowed to see their babies being born before they were wrapped and was able to take them to a private waiting room where the family shared the critical first moments.

They say there's no road map to help steer the bonding process. The couple attended antenatal classes locally while their first baby was on the way, in a different location.

"It was a bit strange as everyone else was pregnant, but there are no specific guidelines – you just do what everyone else does and do what you can," Lois says.

They attended important scans with their surrogate.

Under the current law, when a child is born via IVF to a surrogate mother in Aotearoa New Zealand, the "intending parents" must adopt the child in order to become their legal parents, otherwise they have no legal rights.

At the time of birth, the child's legal parents are the surrogate mother and her partner, if she has one.

The couple would also like to see laws that allowed all adoption paperwork signed and sealed before the birth.

"Everything should be signed off during the pregnancy, not months later, so that legally everything is in place upon the birth of the child.

"I think that would be better for everyone," Lois says.

Laws around surrogacy in New Zealand are currently built on legislation now decades old, although changes are in the wind.

Lawyer Stewart Dalley, himself a parent of children born by a surrogate, has been at the...
Lawyer Stewart Dalley, himself a parent of children born by a surrogate, has been at the forefront of driving change to surrogacy laws. Photo: Supplied
A Law Commission report into a review on surrogacy law is now with the Minister of Justice.

Labour List MP Tamati Coffey also has a member's bill currently at select committee.

Lois and Stephen's legal journey to adopt their second child in 2021 is marked out in a recently released Family Court decision.

Judge Belinda Pidwell said in her compassionately written decision it was effectively "second time around for this family to secure or untangle the legal presumptions" which the law has at this stage under the Status of Children Act 1969 and create the proper relationship to secure this child into her biological family.

Judge Pidwell said for her to make an adoption order she needed to know several things including that consents had been filed, plus that of the surrogate's husband, who was the presumptive father under the Status of Children Act.

The Caldwells' lawyer, Stewart Dalley, has been at the forefront of driving change for more than a decade.

He was one of the expert advisers to the Law Commission review of surrogacy laws. His opinion that reform is desperately needed comes from both his professional and personal experience.

Dalley and his partner were the first same-sex de facto couple to adopt in New Zealand and he was also behind a complaint to the Human Rights Commission about the inequities of the Adoption Act 1955 for gay couples.

"I have three children myself through surrogacy [aged 10, 8 and 2], so I have lived it as well as advising and representing others."

Dalley told Open Justice the laws as they now stand do not reflect the intentions of any of the parties.

"The surrogate mother does not want to be the legal parent of the child being conceived, and neither does her partner.

"In some cases, you have couples who have created embryos using their own gametes and the law says they are not the parents of the child.

"That can be quite insulting for people."

Judge Pidwell was satisfied by a social worker's report, which was critical to the legal process, that the Caldwells were "fit and proper" parents.

"It is a lovely report and will be released to the applicants to be able to be provided to Carla* when she is older, as part of her birth story," Judge Pidwell said.

The Caldwells plan to tell their children their birth story when they're old enough.

"We do want to explain all of this to them," Stephen says.

"It's important they know nothing has been hidden from them."

They were aware of the dissension over surrogacy in some quarters of society but advised those with strong opinions to look a little closer before issuing judgment.

"There are different types of surrogacy, they're not all the same, and people need them for various reasons.

"Like I said before, it's not like the movies, like Hollywood makes it out to be.

"People are entitled to their opinion, but maybe they should keep it to themselves," Lois says.

The Caldwells were able to cement their legal parenthood of their biological children with a direction that their names were to be changed on their birth certificates, which were then re-issued without the words "adoptive parents" on them.

Stephen didn't hesitate in saying he'd do it again. Lois was more circumspect.

"Would you?", she asked him with a sideways glance.

"We still have one frozen embryo but I'm not keen on finding someone else [a surrogate] at this point.

"Two children are enough," Lois says.

*Names and identities of the family have been changed in accordance with Family Court guidelines.

 - Tracy Neal, Open Justice reporter