Introduction
Surrogacy is proof that love knows no bounds, that it transcends biology and embraces the boundless possibilities of family..
In recent years, Ghana has witnessed a surge in surrogacy arrangements, with many individuals and couples seeking alternative means to parenthood. The country’s laws, many argue, have struggled to keep pace with the emerging reproductive technology. Surrogacy, once a taboo topic, is now a burgeoning industry, raising complex legal questions about reproductive rights, parental authority and human dignity. Ghana’s legal framework, or the lack thereof, has created a grey area which some argue may leave intended parents, surrogates, and children vulnerable to some form of exploitation, no matter how minimal. Many further argue that Ghana’s laws remain ambiguous, failing to provide maximum guidance on issues of compensation, parental rights, surrogate’s autonomy, amongst others. As Ghana’s fertility industry booms, it is imperative to examine the legal landscape surrounding surrogacy. This essay unpacks Ghana’s surrogacy laws, exploring the need for a comprehensive framework that safeguards the interests of all parties involved.
The legal framework governing surrogacy in Ghana
The practice of surrogacy involves a woman carrying and giving birth to a child for another individual or couple. According to section 48 of Registration of Births and Deaths Act, 2020 (Act 1027), surrogacy is an arrangement where “an embryo formed from an egg and sperm of persons other than a surrogate mother and the partner or husband of that surrogate mother is implanted into the surrogate mother, or a gamete from a person other than the partner or husband of a surrogate mother is introduced into the surrogate mother to fertilize the egg of that surrogate mother to enable the surrogate mother carry the foetus for the period of the pregnancy and give birth at the end of the period on behalf of another woman or the intended parent.” Hitherto, there was no legal recognition of surrogacy or any other assisted reproductive birth in Ghana. However, currently, surrogacy is legally recognized within the Ghanaian legal framework following the passage of Act 1027. Notwithstanding the recognition of surrogacy under our laws, the legal framework of surrogacy as gleaned from section 22 of Act 1027 and gathered from the heading of the said provision is specifically centred on the registration of births arising from surrogacy in Ghana. The legal framework in Ghana, mainly due to the provisions of Act 1027, makes provision for two (2) separate procedures or steps towards legal recognition of parentage of a surrogate child. These include Obtaining a Pre-Birth Parental Order or Obtaining a Post-Birth Parental Order.
Pre-Birth Parental Order v Post-Birth Parental Order
In order to obtain a Pre-birth Parental Order, an application is made to the High Court for a pre-birth parental order which order would name an intended parent or surrogate mother or both as the parent of a child born through surrogacy and further confer parental rights on the persons named as legal parents of the child. The legal effect of a failure to obtain a pre-birth parental order is that the surrogate mother will be named as the mother of the child with associated parental rights. An application for a pre-birth parental order is required to be brought before the High Court within twelve (12) weeks of introducing an embryo or gamete into the surrogate mother, and the birth of the child must occur within twenty-eight (28) weeks of the grant of the order by the High Court. The High Court only grants a pre-birth parental order where the court is convinced of evidence of parentage and the existence of a surrogacy. It is only upon the grant of such order that an intending parent would be named as the legal parent of the unborn baby. Following the grant of a pre-birth parental order, a copy of the pre-birth parental order naming the legal parents of the child is mandated to be issued to the District Registrar of the district in which the child will be born; the intended parent; the surrogate mother; and the hospital where the child is born, if the birth occurred at a hospital facility. The registration of the birth of the child is then undertaken by the District Registrar of Birth and Deaths.
Failure to obtain a pre-birth parent order does not take away the right of the intending parent(s) to apply to be named as parents of the child. In the absence of a pre-birth parental order, an intended parent or the surrogate mother is allowed to apply to the High Court for a post-birth parental order or a substitute parentage order. A post-birth parental order or a substitute parentage order is in principle an adoption proceeding and must be lodged at the High Court at least twenty-eight (28) days after the birth of the child and not later than six (6) months after the birth of the child. Upon satisfaction that there exists a surrogacy, the High Court is mandated to issue a post-birth parental order or a substitute parentage order naming the intended parent or surrogate mother as the legal parent of the child. The post-birth parental order is issued where there has been no form of registration pertaining to the birth arising from the surrogacy. On the other hand, a substitute parentage order is issued where a birth record has already been entered in the registry. a substitute parentage order will require the District Registrar of Births to strike out any record of the birth and cause a new record to be entered in accordance with the substitute parentage order issued by the High Court.
Upholding the welfare of the child in surrogacy arrangements
Unfortunately, the Children’s (Amendment) Act, 2016 (Act 937) has no provisions relating to surrogacy. From the long title of the Act, the Children (Amendment) Act was enacted purposely to amend the Children’s Act, 1998 (Act 560) and to make further provisions in respect of foster-care and adoption. However, a thorough reading of the Children’s Act reveals that the central theme which underlies the Act is the welfare of a child. The welfare principle enshrined in section 2 of the Children’s Act states that in all matters concerning a child, the best interest of the child must be paramount and the primary consideration by any court, person, institution or other body. Accordingly, surrogacy arrangements ought to be interpreted to promote the best interest of the child. In applying the welfare principle, it is in the best interest of a child born through surrogacy to live with his legal parents (that is, persons named as parents by virtue of a pre-birth or post-birth parental order granted by the High Court). The Children’s Act guarantees the right of a child to live with his parents and family and grow up in a caring and peaceful environment unless, inter alia, living with his parents would lead to significant harm to the child. Thus, once legal parentage has been confirmed by a pre-birth or post-birth order, unless there is proof of any of the conditions stated above in the Children’s Act, it is deemed in the best interest of the child to live with the child’s parents.
Conclusion
Ghana has no comprehensive legal framework governing surrogacy, be it international or domestic, save for the registration of births through surrogacy. Act 1027 provides guidelines for surrogacy arrangements in order to guarantee legal recognition of the parental rights of an intended parent or surrogate mother. It should, however, not be interpreted as representing a comprehensive framework for regulating all manner of assisted birth arrangements. Surrogacy is constantly evolving and the law must adapt to address its complexities. Ghana needs a comprehensive law safeguarding the rights and safety of parties to surrogacy arrangements as well as the unborn child during pregnancy and after its birth. There should be a regulatory authority to oversee the surrogacy industry so as to fight exploitation by ensuring an informed consent throughout the process. This regulatory authority would ensure that surrogacy agencies operate ethically. There should also be legislation to establish a minimum and maximum age threshold for surrogate mothers. Furthermore, a proposed legislation should mandatorily require parties to a surrogacy arrangement to undergo counselling and receive independent legal advice prior to the execution of the surrogacy contract. These and many more proposals would prevent the exploitation of the child; surrogate mother; the surrogacy institution or the intending parents.
God bless!
