Whangai, Surrogacy and Adoption

Michael McCabe
Issue 26, November 2008

This paper, in its original form, was delivered to the Inaugural Australian National Colloquium on Bioethics on "Conscience in Professional Life" at Melbourne in January 2008. The Colloquium marked the formation of the Australian Association of Catholic Bioethicists under the aegis of the Sovereign Order of Malta.

Introduction

When it comes to framing legislation around the practice of surrogacy, existing laws on adoption are frequently used as a starting point principally because surrogacy and adoption are often equated with each other. While this is not an unreasonable assumption, such an approach has significant shortcomings, not least because surrogacy is fundamentally distinct from adoption. A more fruitful approach may be in fact to align the practice of surrogacy with the cultural practice termed Whangai. After examining, in turn, surrogacy, adoption and Whangai this paper explores the inter-relationship between these concepts and suggests a possible way forward that takes into account traditional cultural practices in New Zealand.

In preparing this paper, the following Maori proverb provided great insight: "Each of us at a handle of the basket." ("Mau tena kiwa o te kite maku tenei") To my mind the proverb evokes the role of theological reflection in the field of bioethics, namely, one of nurture in a spirit of partnership.

This proverb also underscores the challenge in theological bioethics not least because religion and theological insight have become somewhat marginalized in Australian and New Zealand society. This is clearly evident in the field of assisted reproductive technology where the Church's wisdom and insights can be ignored or judged to be irrelevant not only by those in wider society but also by some within the faith community.

Finding common ground and continuing to believe that theological bioethics is indeed a participatory discourse, to quote Lisa Sowle Cahill, is quite challenging. How do we, for example, recognise children and families built in "non-traditional" ways? How do we care for these families pastorally? How do we protect children and continue to hold that they are a gift given in sacred trust while others start from the premise that having children is a right?

Our experience in New Zealand has taught us that such realities are very real and form the backdrop to our ministry. Indeed they provide the basis for bringing hope and wisdom to the wider culture. In the light of that our approach is twofold. Firstly, to state the insights and teaching from the Catholic moral tradition, and secondly, to do so in a way that reflects an active listening to the culture. It is this approach which frames this paper on surrogacy and family and adoption law.

What is the Catholic perspective on Surrogacy?

In its submission to the Human Assisted Reproductive Technology Bill in July 2003 – a submission made on behalf of the New Zealand Catholic Bishops Conference and The Nathaniel Centre – we stated our opposition to all forms of surrogacy.

"We believe that the overall well-being of children is compromised when they become subject to any arrangements under which a woman agrees to become pregnant for the purpose of surrendering custody of a child to be born. We also believe that the practice of surrogacy can place the health and welfare of women at risk. We support the move that would seek to keep surrogacy arrangements from being made enforceable."

"Within assisted human reproductive technologies there is a significant risk of the commodification of children and the reproductive capacities of women and men. The exploitation of children, women and men for commercial ends is an affront to the intrinsic dignity of persons, and therefore we welcome the prohibition of commercial surrogacy. In addition, the commercialisation of such activities is contrary to the well-established and accepted New Zealand practice whereby human organs and tissues are not sold or purchased and adoption is non-commercial."

In August 2007 in our submission to the Advisory Committee on Assisted Reproductive Technology on "Aspects of Assisted Reproductive Technology" we repeated this opposition . Yet in a society in which surrogacy is becoming more widely practiced and accepted we cannot be content with simply stating opposition. Were that the case we would effectively have to absent ourselves from the discussion table. Consequently, and notwithstanding our fundamental opposition to surrogacy, we also undertake the arguably more difficult task of trying to positively influence the values that shape current ethical debates and to do so in a way that is consistent with our Catholic moral tradition – and in a way that seeks to limit the harm by establishing some fundamental parameters to this practice based on our commitment to the human person.

Indeed because the Human Assisted Reproductive Technology Act of 2004 specifically states that the "different ethical spiritual and cultural perspectives in society should be considered and treated with respect" there is an expectation that we will be a significant partner in the discussion and shaping of legislation. In other words, the New Zealand legislation provides a wonderful platform for the Churches to bring a theological and spiritual perspective to bioethical issues which brings me back to the image of the kete.

The woven kete has two handles and both are required in order to carry it. In the same way our theological exploration and discussion requires an active listening to the wisdom within the culture as well as continued fidelity to our Catholic moral tradition. This process leads us to new perspectives which may challenge our thinking but equally open up new possibilities in ethical discussions.

In the New Zealand setting " Tikanga Maori", that is, the customs and traditions that have been handed down through the passage of time, play an important role and reflect values that are evident in the wider New Zealand society; in particular, Maori cultural notions of extended family [whanau] and the emphasis they give to family and ancestral relationships [whakapapa].

"Whānau are an essential part of Māori life. The majority of literature written about Māori will include whānau as a central point in the discussion. There are many descriptions of whānau in today's society. Commonly translated it means 'extended family' and the literal translation is 'to give birth.' Models of whānau can be described as:

all descendants of a common ancestor
descent groups known as hapū or iwi
unrelated (by birth) people who interact or gather together for a common purpose; and
siblings or a nuclear family.

Two broad commonly known descriptions of whānau are: 'whakapapa whānau' (whānau ancestral); and 'kaupapa whānau' (whānau based on a common purpose)."

(Department of Corrections Whānau Involvement Plan 2005)

With these concepts in mind I now wish to examine the ancient and long established cultural concept of Whangai, sometimes referred to as "customary adoption", as a way of gaining a new perspective on surrogacy. My belief is that insights gained from the cultural practice of whangai challenge us to reexamine our understandings of the relationship between surrogacy and adoption.

What is adoption?

In 1986 The United Nations stated that the "primary aim of adoption is to provide a child who cannot be cared for by his or own parents with a permanent family" Adoption has been part of New Zealand Law since 1881. "It is a process by which the genetic parents of a child can abdicate from their parental role and transfer parenthood and its attendant rights and responsibilities to a substitute parent or parents. The child is deemed to be a child of the adoptive parents and the birth parents are deemed to cease to be parents of the child. Adoption provides permanency to parent-child relationships because it is almost impossible to revoke an adoption order." (New Issues in Legal Parenthood, 2004:94)

In other words, adoption is predicated on the need of the child who, for whatever reason, cannot be cared for by his or her biological parents. By definition adoption is not a private agreement – it is a community-based agreement based on the dignity of the child and the common good. This is clearly articulated in a paper given at the New Zealand Law Conference in 2001 by Vivienne Ullrich, QC: "The driving principle behind most of the law which affects children in New Zealand is that the welfare of the child must be paramount consideration or that the best interests of the child should prevail over the interest of other parties."

This has been a fundamental starting point of The Nathaniel Centre's submissions on assisted human reproduction. However, as Vivienne Ullrich notes: "That principle cannot be the base point in relation to the issues arising out of assisted human reproduction. The agenda is entirely adult driven. Children may be the end result and we may [do] need laws to cater adequately and appropriately for their existence once they are in being but the genesis of the process is not the interests of children but the interests of adults who wish to have children..." ("Technobabies," 2001:1)

This difference in driving principles between the context for adoption with its focus on the child's best interest and the context for surrogacy can not be overstated. This constitutes a compelling reason to look not only at adoption law to guide future developments in surrogacy, but also at the cultural practice of Whangai.

What is Whangai?

Whangai occurs when "a child is given to family members to raise." (New Issues in Legal Parenthood: 10) Essentially whangai keeps the child within the whanau and maintains his/her whakapapa connections. In a practical sense it allows the child to know its identity, and to be nurtured by those to whom he/she is genetically connected, and to retain his/her dignity as a family member. It is also based on the concept of the child as gift, even though that gift is generally given as the result of an adult need rather than the child's need.

A comparison of whangai shows that it differs from adoption in at least three important ways, as Areta Koopu, Human Rights Commissioner, notes:

Children who are whangai are not necessarily born of parents who are unable to care for them
The purpose of whangai may not primarily relate to facilitating the care of the child instead it may primarily relate to whakapapa (family heritage, the family tree – the links between generations)
Whangai is not necessarily permanent.

There has been considerable discussion about the practice of whangai and also attempts to bring it into line with New Zealand adoption laws or even to outlaw the practice. New Zealand is a signatory to the United Nations Declaration on social and legal principles relating to the protection and welfare of children (with special reference to foster placement and adoption nationally and internationally). However the concept of whangai cannot be brought into line with this Declaration.

As Areta Koopu further notes, there is a "tension between the concepts and purposes of adoption as contemplated by relevant international human rights instruments and aspects of whangai. As this tension goes to the very heart of adoption and whangai resolving it may prove no easy matter ..." As discussed earlier, this is not surprising considering the fundamentally different driving principle that underpins each practice. That is why several legal commentators now suggest that the way forward to resolving this tension may be to view whangai not as a form of, or equivalent to, adoption, but rather as a separate, [although related] concept.

How then does whangai relate to surrogacy and help us more than an adoption focus?

First let me briefly define surrogacy. "Surrogacy usually involves a woman agreeing to carry a child for another couple on the basis that she will pass the child to them to raise from birth." Surrogacy can take many forms but the most common arrangements involve:

A woman conceiving a child through sexual intercourse with the commissioning husband.
A woman being artificially inseminated with the commissioning husband's semen.
A woman having an embryo transferred to her womb that has been created using the gametes of the commissioning couple
A woman having an embryo transferred to her womb that has been created using a donor ovum and a donor sperm.
A woman having an embryo transferred to her womb that has been created using a donor ovum or donor sperm and the gamete of one of the commissioning parents. (New Issues in Legal Parenthood, 2004:36)

Unlike adoption, surrogacy, as defined and in the forms listed above, clearly does not focus on the best interests of the child. Neither does it focus on the parents' inability to provide care and protection. Surrogacy is an adult-centered intervention that is based on adult needs. Therefore, it is arguable that surrogacy has more in common with Whangai than adoption and that the same tension exists between surrogacy and adoption as it does between Whangai and adoption.

For this reason I propose that we should not be trying to focus exclusively on adoption laws for the regulation of surrogacy. Rather surrogacy needs to be viewed as a separate although related concept that is more akin to the practice of Whangai.

The way forward

When it comes to thinking about the provisions we need in law to offer surrogate children protection, and to set some limits around the practice, the traditional understanding and practice of Whangai can provide a way forward, not least because of its innate cultural strength. The concept of Whangai cannot be understood apart from a proper understanding of the innate value that Maori place upon children. Donna Durie-Hall and Dame Joan Metge express this most eloquently:

"In Maori thinking, children are not the exclusive possession of their parents. Indeed the ideas of possession and exclusion, separately or in association, outrage Maori sensibilities. Children not only belong to their parents but also to the whanau, and beyond that to the hapu and iwi. They are a tatou tamariki [the children of us many] as well as 'a taua tamariki' [the children of us two]... they belong to a descent group but at any given time are held by individuals on its behalf, in trust for future generations." (New Issues in Legal Parenthood, 2004:11)

At the core of whangai is a communal vision of children and family. This vision challenges the dominant assumptions that drive surrogacy, in particular the notion that children are a right. The values that lie behind this vision are an essential antidote to the complication and fracturing of whakapapa and family relationships that can result from surrogacy arrangements. I believe that these values are capable of providing 'checks and balances' to the adult-centered practices which drive surrogacy.

In particular it is worth noting that Whangai is never undertaken as a private arrangement but is always subject to the wider family and a determination that includes what is best for the community. This suggests that some form of accountability to the broader community, including the wider whanau, as well as some form of communal discernment, is absolutely essential. In a society which already allows the practice of surrogacy there is, in other words, a strong case for arguing that it should be limited to situations where the birth mother is either a family member or at least a very close friend of the intended parents. In addition reflection on the practice of Whangai further constitutes an argument that at least one of the intended parents should be the potential child's genetic parent. These ideas would clearly benefit from further development.

Conclusion

I have argued that surrogacy is fundamentally distinct from adoption. I have further suggested that it is more naturally aligned to the Maori cultural practice of Whangai. Whangai provides a communally-based counterbalance to the individualistic and rights–based assumptions that drive surrogacy and other human assisted reproductive technologies. The strengths of Whangai also provide a richer basis for theological reflection on the complex ethical and moral issues generated by surrogacy. In a world where surrogacy is already practiced, Whangai provides a means for limiting its harm. It also offers a novel way for theologians and secular commentators to carry the discussion forward in a way that benefits society and provides some safeguards for the dignity of the child.

Rev Dr Michael McCabe
Director
The Nathaniel Centre