LegalResearchFoundation

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.

This article examines the reasoning in Taylor v Attorney-General, a recent high-profile case in which the Judge was asked to determine whether the blanket disenfranchisement of prisoners discriminated against Māori. The case raises hot-bed contemporary political issues such as the scope of the franchise, Māori self-determination, and Māori over-representation in New Zealand’s prison population. While agreeing with the judgment’s conclusion, the article highlights various equivocations in its understanding of the Māori claimants. It then explicates a distinct and more useful approach, described as “claimant-group analysis”, predicated on the utility of specifying in precisely what sense Māori ethnicity is being invoked. Against the recent judicial emphasis on comparator reasoning, this approach asks not “to whom will you compare me” but “who is being compared”?

The New Zealand tax system was until very recently so structured as to allow the country to be used as a tax haven. Specifically, it allowed foreigners to use trusts established in New Zealand (referred to as “foreign trusts”) to avoid and evade the tax they would otherwise have had to pay in their home country. It would seem to have been possible, too, for foreigners to use such trusts for other illicit purposes, in particular money-laundering and financing terrorism. In April 2016 the publicity given to the so-called Panama Papers attracted attention to this aspect of the New Zealand tax system. The government responded by appointing a distinguished Wellington accountant, John Shewan, to advise. He recommended that the law be changed and the government accepted his recommendations. This article explains how the foreign trust rules work, and how the amending legislation was designed to preclude this form of abuse.

Despite a broad consensus that society owes an ethical obligation to compensate for research-related injury, and that no-fault is the best ethical response, the compensation arrangements in place in commercially sponsored clinical trials in New Zealand fall below this ethical expectation. While injured participants in publicly funded research have access to legally enforceable and appropriate compensation under the no-fault accident compensation scheme, those injured in commercially sponsored trials do not. They must either bring a negligence action against researchers and/or sponsors, with very low chances of success, or rely on compensation provided in accordance with industry guidelines adopted from the United Kingdom. The key deficiency of these guidelines is that a sponsor’s obligation to pay no-fault compensation is not legally enforceable by an injured subject, who is vulnerable to being uncompensated or undercompensated as a result. It is also likely that, given significant deficiencies in the information given to potential subjects recommended by ethics committees, subjects will only find out about their financial exposure when submitting a claim for injury. The article considers options for injured subjects, ethics committees and Government for addressing this worrying situation, as well as for maintaining effective incentives on commercial sponsors to conduct safe clinical trials involving humans.