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Gestational Surrogacy Disputes: A Proposed Cause of Action for Intended Parents in New Zealand

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All surrogacy agreements are unenforceable in New Zealand. The surrogate mother is the legal mother of the child that results from a surrogacy agreement unless and until the child is adopted by the intended parents. This means that if the surrogate mother refuses to relinquish custody of the resulting child the intended parents have no means of protection. The author submits this outcome is not suitable in a gestational surrogacy dispute where the intended parents have an exclusive genetic link to the resulting child.

Using privacy law as the mode of protection, it is proposed that gestational surrogacy agreements should be enforceable. Further, if the surrogate mother refuses to relinquish custody of the resulting child, the intended parents should have an actionable claim against her on the basis she is using their genetic information against the purpose for which it was divulged to her. This claim is intended to recognise the harm or indignity that is suffered due to the surrogate mother's breach of the intended parents' informational privacy. It is not a claim for parental status. The remedy that is available will, however, be highly relevant to the determination of custody proceedings in the Family Court.
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Document Type: Research Article

Publication date: May 1, 2017

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  • The New Zealand Law Review, published quarterly by the Legal Research Foundation Inc. since 1966, is the premier law journal published in New Zealand. It includes refereed articles by leading New Zealand and international scholars, together with annual and biennial reviews of the major areas of the law, written by specialist contributing editors.
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