“Intercountry adoptions under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption”
Jane Mountford and Claire Achmad, 2010
This article provides an overview of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Ministry of Social Development’s work in that area. The author discusses when the Convention applies to an adoption and its processes and requirements. Impediments to adoption under the Convention, such as where a child’s habitual residence is uncertain, are also discussed. A major focus is the apparent tension between cases in which a pragmatic approach is required to uphold the best interests of the child and the need to comply with Convention processes. The article concludes by briefly discussing the Conventions possible application to cases of international surrogacy.
Debra Wilson, 2016
The author explains the circumstances in which the Adoption (Intercountry) Act 1997 will apply to cases of international surrogacy, where the intended parents of a surrogate child born outside of New Zealand wish to be recognised as the child’s legal parents in New Zealand. In accordance with the Act’s incorporation of the Hague Adoption Convention 1993 into domestic law, the Act applies if the habitual residence of the child is outside New Zealand. Determining the child’s habitual residence becomes a complicated task when there is no biological link between the child and either of the intended parents. The author argues that in such a situation the habitual residence of the intended parents can be imputed to the child where the intended parents are regarded as the legal parents in the child’s birth country, and the child has the biological make-up intended by the surrogacy arrangement. Such an approach is consistent with recent case law, the purposes of the Adoption Convention, and the principles of New Zealand surrogacy law.