Savannah Cowan discusses whakapapa in family law through an analysis of the 2024 High Court appeal in Mable v Rangi. Note that the names of the parties to these proceedings have been modified.

Hei tīmatanga – Introduction

E kore au e ngaro, he kākano i ruia mai i Rangiātea.

I will never be lost, for I am a seed sown from Rangiātea.

This whakataukī is especially apt for tamariki Māori. That is, a seed may mark a new beginning, but it does not begin from nothing. Every tamaiti exists within a wider network of whānau, hapū and iwi, connecting ancestors with generations still to come.^[1] Moana Jackson explains that children were the “next beginning of the past”, so precious that to harm the child was to harm whakapapa itself.^[2] Tamariki Māori are therefore taonga whose identity and wellbeing cannot be separated from where, and from whom, they descend.^[3] Yet this conception of familial relationships is inadequately reflected in Aotearoa New Zealand's statutory framework for parenthood.^[4] The 2024 High Court appeal in Mable v Rangi brought the legal consequences of whakapapa into the unsettled territory of assisted reproduction.^[5] The defendant, Mr Rangi, and the appellant, Ms Mable, conceived their daughter, Elle, through artificial insemination using Mr Rangi’s donated semen. Although the Status of Children Act 1969 (the SOCA) excluded Mr Rangi from legal parenthood,^[6] the Court upheld his appointment as an additional guardian under the Care of Children Act 2004 (the COCA).^[7] This ruling is a pivotal triumph in a largely unwritten jurisprudence of Māori assisted reproduction as it begins to reckon with whakapapa as a source of legal rights.

Kōrerorero – Discussion

Mable v Rangi

Prior to Elle’s conception, Ms Mable and Mr Rangi entered into a written co-parenting agreement confirming that Mr Rangi would be recorded as Elle’s father, participate in important decisions, maintain contact with Elle, and introduce Elle to his whānau.^[8] When the relationship between Ms Mable and Mr Rangi deteriorated, Mr Rangi sought guardianship for Elle. As a sperm donor, Mr Rangi was “not, for any purpose, a parent”,^[9] albeit being the link to her whakapapa Māori, whānau, hapū and iwi.^[10] The Supreme Court clarified that the SOCA is concerned with legal status and its consequences, rather than biological relationships.^[11] Unable to claim guardianship as Elle’s father, Mr Rangi instead successfully sought appointment as an additional guardian under s 27 of the COCA.^[12] That inquiry turned on Elle's welfare and best interests, including the preservation of her whānau, hapū and iwi relationships and the strengthening of her identity.^[13] Ms Mable appealed that appointment, arguing that Elle’s whakapapa could instead be preserved through the HART information regime without Mr Rangi occupying a legal role in her life. The appeal therefore compelled the Court to consider how much legal weight whakapapa could carry beyond parenthood.

Adoption Act 1955

Whakapapa is neither created nor extinguished by statute. Professor Jacinta Ruru locates the difficulty in Aotearoa New Zealand family law's historical preference for the Pākehā nuclear family, describing much of its development as assimilationist and poorly aligned with Māori social organisation.^[14] He Poutama identifies whakapapa and whanaungatanga as “structural norms” which establish the relationships and normative framework through which status and responsibilities arise.^[15] The importance of birth within that framework extends beyond biology. Pregnancy and birth engage mana, tapu and mauri, while whakapapa itself endows the tamaiti with mana, tapu, wairua and mauri.^[16] Evidence before the ongoing Mana Wāhine kauapa inquiry locates childbirth within a distinctly whakapapa-based order, in which the tapu of te whare tangata and tikanga surrounding birth affirm the tamaiti as the continuation of whakapapa across generations.^[17]

The Adoption Act 1955 stands in stark contrast to this understanding. Section 16 sets out the legal effects of an adoption order, making the adoptive parents the legal parents and treating the child as if born to them in lawful wedlock. This statute legally severs the relationship between a child and their birth parents, despite whakapapa recognising that connection as enduring.^[18] In Barton-Prescott, Māori familial organisation was recognised as a taonga contemplated for preservation under te Tiriti o Waitangi, with legislation concerning the status and future of children to be interpreted accordingly.^[19] Later, the Law Commission accepted that New Zealand’s laws of parental status have never reflected Māori customary law and practice.^[20] Despite the unfinished work of reforming adoption laws, the intersection of tikanga Māori with assisted reproduction and legal parenthood remains comparatively unexplored.^[21]

Human Assisted Reproductive Technology Act 2004

The Human Assisted Reproductive Technology Act 2004 (the HART) reflects a more deliberate attempt to accommodate Māori interests within assisted reproduction. Section 4(f) requires the needs, values and beliefs of Māori to be considered and treated with respect, while s 34(4) ensures its advisory committees include expertise in Māori customary values and practice.^[22] For Māori donors, the information regime also records whānau, hapū and iwi affiliations, enabling donor-conceived tamariki to identify their whakapapa without requiring an ongoing relationship with the donor.^[23] Ruru welcomed this recognition of whakapapa, but questioned whether preserving whakapapa as information adequately engages with tikanga Māori.^[24] The Law Commission similarly recognised that genetic origins assume preeminent importance for Māori, while also acknowledging the competing interests of donors, parents and children.^[25]

The HART protects a child’s capacity to know their whakapapa, but it says little about the relationships or responsibilities that arise through whakapapa. Counsel for Ms Mable contended that Mr Rangi should remain legally at arm’s length, with Elle’s whakapapa sufficiently preserved through access to donor information.^[26] Churchman J rejected the statutory basis of that argument, finding that there is no “provider” for the purposes of ss 47 and 50, and so no order available to Elle under those provisions.^[27] His Honour then addressed its more fundamental premise. The mere recording of iwi and hapū could not constitute a sufficient connection to whakapapa and would “undermine and minimise” the relevant principles of tikanga.^[28] Mable v Rangi hence shifted the inquiry from knowledge of whakapapa to its practical consequences for a tamaiti Māori under the COCA.

Care of Children Act 2004

The COCA goes further than preserving knowledge of whakapapa. Section 5(e) requires a child’s relationships with whānau, hapū and iwi to be preserved and strengthened, and section 5(f) affords the same protection to identity, including culture and language.^[29] Churchman J regarded Mr Rangi’s exclusion from legal parenthood as having only “limited relevance” to guardianship under s 27, where the governing inquiry remained Elle’s welfare and best interests.^[30] For a tamaiti Māori, Moss J considered those principles inseparable from tikanga.^[31] Her Honour rejected any artificial confinement of family to successive generations, because the broader conception of whakapapa was not contrary to the statute, but an “enhancement” of its interpretation.^[32]

Whakapapa, whanaungatanga, and mana tīpuna were therefore necessary to understand both the relationships and identity that s 5 required the Court to consider.^[33] Notably, although safety was not directly engaged, Moss J considered that removing a Māori child from whānau could pose a “significant risk” to psychological safety.^[34] Churchman J upheld Moss J’s approach and concluded that tikanga should carry “significant weight” in guardianship proceedings involving a tamaiti Māori.^[35] The decision suggests these considerations cannot be so readily separated.

Analysis

The significance of Mable v Rangi should not be mistaken as establishing a tikanga-based entitlement to guardianship for Māori donors. Churchman J confirmed that even a donor providing the sole paternal connection to whānau, hapū and iwi has no automatic right to appointment.^[36] Thus, tikanga does not provide a simple answer to donor conception within the existing statutory framework. Ruru identifies assisted reproduction as capable of sustaining whakapapa and enabling Māori parenthood, while also questioning whether medical intervention may affect the tapu and mauri of the body and threaten Māori understandings of identity, genealogy and history.^[37]

This complicates concerns that Mable v Rangi may deter Māori donors by creating unexpected legal obligations.^[38] Mr Rangi had expressly contemplated an ongoing role before Elle’s conception, while other donor arrangements may engage tikanga differently. The present legislation offers little guidance on that distinction. The SOCA determines parental status, the HART principally protects whakapapa information and the COCA addresses relational consequences only once a dispute reaches the welfare jurisdiction. The question left by this decisive precedent is therefore how assisted reproduction law might recognise the relationships and responsibilities arising through whakapapa without automatically translating them into legal parenthood and prescribing responsibilities where it is not in the best interests of a child's safety and welfare. I suppose this would need to be contextualised by the relevant facts of each given case.

Kōrero whakamutunga – Conclusion

Mable v Rangi marks a notable departure from the assimilationist approach to family law identified by Ruru. The Court recognised that the legal classification of a sperm donor cannot, by itself, determine the place of whakapapa in the life of a tamaiti Māori. That recognition is important, but necessarily incomplete. Tikanga Māori is the first law of Aotearoa, and artificial insemination now presents questions that its statutory regulation has scarcely begun to answer. Reproductive technology may alter the means by which life is conceived, but it does not render whakapapa, whanaungatanga, mana, tapu and mauri legally inconsequential. Nor does their relevance dictate that every whakapapa connection should be translated into parenthood or guardianship. The obligations whakapapa generates in donor conception, and their appropriate recognition in state law, if any, remain unsettled. Mable v Rangi marks an essential beginning in that jurisprudence.

Ngā kupu āpiti – Notes

[1] Moana Jackson “Changing Realities: Unchanging Trusts” (1994) 10 Austl JL & Society 115 at 118; Moana Jackson, “Whakapapa and the beginning of law” (unpublished article) at 3.

[2] Moana Jackson “Whakapapa and the beginning of law” ( unpublished article) , above n 1, at 3.

[3] Mable v Rangi [2024] NZHC 3803 at [10]–[11].

[4] Jacinta Ruru “Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand” (2005) 19 International Journal of Law, Policy and the Family 327 at 329.

[5] Rangi v Mable [2023] NZFC 10811, [2023] NZFLR 472; Mable v Rangi, above n 3, at [2].

[6] Section 21.

[7] Section 23.

[8] Mable v Rangi, above n 3, at [4]–[6].

[9] Status of Children Act 1969, s 21.

[10] Section 21.

[11] Hemmes v Young [2005] NZSC 47, [2006] 2 NZLR 1 at [9], quoted in Rangi v Mable, above n 5, at [7].

[12] Rangi v Mable, above n 5, at [4]–[9].wedlock; it legally

[13] Care of Children Act 2004, ss 4 and 5(e)–(f).

[14] Ruru “Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand”, above n 3, at 328-329.

[15] Law Commission He Poutama (NZLC SP24, 2023) at [3.22] and [8.77]–[8.80].

[16] At [4.98]–[4.103]; Waitangi Tribunal “He Pāharakeke, h Rito Whakakīkīnga Whāruarua: Oranga Tamariki Urgent Inquiry” (Wai 2915, 2021) at 15.

[17] Waitangi Tribunal “Aspects of whakawhānau” (Mana Wāhine Kaupapa Inquiry, Wai 2700) <www.waitangitribunal.govt.nz>.

[18] Adoption Act 1955, s 16(2)(a).

[19] Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC) at 184–185.

[20] Law Commission New Issues in Legal Parenthood (NZLC PP54, 2004) at [1.10]–[1.12], [2.18], [5.17]–[5.18].

[21] Ruru “Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand”, above n 4, at 338–340.

[22] Sections 4(f) and 34(4)(d).

[23] Sections 47(1)(h) and 63(2)(h).

[24] Jacinta Ruru “Kua tutū te puehu, kia mau: Māori aspirations and family law policy” in Mark Henaghan and Bill Atkin (eds) Family Law Policy in New Zealand (5th ed, LexisNexis, Wellington, 2020) 57 at 76–78.

[25] Ruru “Indigenous Peoples and Family Law: Issues in Aotearoa/New Zealand”, above n 4, at 338–340.

[26] Mable v Rangi, above n 3, at [45] and [55].

[27] At [55].

[28] At [45] and [55].

[29] Sections 5(e) and (f).

[30] Mable v Rangi, above n 3, at [56].

[31] Ellis v R [2022] NZSC 114 at [19], [108]–[110] per Glazebrook J, [171]–[174] per Winkelmann CJ, [257]–[262] per Williams J and [279] per O’Regan and Arnold JJ; Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation [2020] NZCA 86, [2020] NZRMA 248; Takamore v Clarke [2012] NZSC 116, as cited in Mable v Rangi, above n 3, at [10].

[32] Rangi v Mable, above n 5, at [32]–[33].

[33] At [34]–[36], [52].

[34] Rangi v Mable, above n 5, at [35].

[35] Mable v Rangi, above n 3, at [58].

[36] Mable v Rangi, above n 3, at [60]–[62].

[37] Ruru “Kua tutū te puehu, kia mau: Māori aspirations and family law policy”, above n 25, at 75–76.

[38] Stewart Dalley “Family Court breaks new ground in ruling on rights of a Māori sperm donor” The Law Association (8 December 2023). <www.thelawassociation.nz>.

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