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2017 N.Z. L. Rev. 1 (2017)

handle is hein.journals/newzlndlr2017 and id is 1 raw text is: 

1


      Gestational Surrogacy Disputes:

      A   Proposed Cause ofAction for

      Intended Parents in New Zealand


                        SARAH ALAWI*



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 ofthe resulting child the intended parents have no
means  ofprotection. 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 ofprotection, it is proposed that
gestational surrogacy agreements should be enforceable. Further,
ifthe 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.


*BA/LLB (Hons), The University of Auckland. Associate at Gilbert Walker, Auckland. My
thanks to Stephen Penk, Associate Professor at the University of Auckland, for his assistance
and support.

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