Law on Surrogacy in Ghana
TYPES OF SURROGACIES IN GHANA
An intended parent may engage the services of an intended surrogate mother for a child. It appears that, Registration of Births and Deaths Act, 2020 (Act 1027) contemplates two types of surrogacy in Ghana: traditional and gestational surrogacy.
Traditional Surrogacy
This involves surrogates who are artificially inseminated with the sperm of the intended father of the child. Thus, the surrogate mothers could rightly be deemed as the biological mothers of the child since their eggs are fertilised and some DNA is transferred to the unborn child.
Gestational Surrogacy
This involves the use of an egg from the intended mother or an egg donor and sperm from the intended father or a sperm donor to create an embryo that is transferred to the surrogate mother’s uterus. In this case, the surrogate mother is not genetically related to the child she carries.
LEGAL FRAMEWORKS & PROTECTIONS IN GHANA
In 2020, surrogacy was officially regulated under Ghanaian law through its recognition as assisted reproduction under Act 1027. Specifically, Act 1027 provides the framework for the registration of assisted reproductive births and related matters. Under this Act, surrogacy and who a surrogate mother is, is respectively defined as follows:
Surrogacy means 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 fertilise 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.
A surrogate mother is defined as a woman who has accepted under a surrogacy agreement to carry a foetus for the period of the pregnancy and give birth to a baby at the end of the period on behalf of another woman or the intended parent.
Other legal references include:
- The Children’s Act, 1998 (Act 560) – child protection.
- The Contracts Act, 1960 (Act 25) – enforcement of surrogacy agreement rights and responsibilities.
- The High Court Civil Procedure Rules, 2004 (C.I. 47) – court applications on matters of surrogacy (e.g., pre-birth parentage orders).
ESSENTIAL INGREDIENTS OF A SURROGACY AGREEMENT
A surrogacy agreement, also known as a surrogacy contract, is one between an intended parent and a surrogate, outlining the terms of their agreement, including compensation, medical care, and other aspects of the surrogacy.
Its purpose is to establish the rights and responsibilities of all parties involved and clarify expectations and obligations.
While not always legally binding in all jurisdictions, in Ghana such agreements are binding under the law of contract and other statutes, subject to any applicable exceptions.
The Four (4) Essential Ingredients
1. Form of Assisted Reproductive Technology to be Adopted
- Include parental rights of the intended parent.
- Specify the ART method (IVF/ET, IUI, etc.).
- Confirm the surrogate relinquishes all parental rights.
2. Confidentiality and Consent
- Medical information must be released to the intended parents.
- Parties must not disclose agreement details unless legally required.
3. Circumstances under which Termination of Pregnancy Might be Considered
- Agreement must state when termination is acceptable and the implications (including compensation).
4. Compensation
- Surrogate is entitled to reasonable compensation.
- Terms and mode of payment must be clearly defined.
- Note: No official guidelines yet exist for compensation in Ghana.
Legal Representation
- Both surrogate and intended parents must have independent legal counsel.
- Legal assistance ensures fairness and understanding of responsibilities.
THE NEED FOR PRE-BIRTH OR POST-BIRTH PARENTAGE ORDER
Under certain circumstances, a court order for parentage of the unborn child can be obtained. If not obtained pre-birth, a post-birth adoption order may be necessary.
PARENTAL ORDER UNDER SECTION 22 OF THE REGISTRATION OF BIRTHS AND DEATHS ACT, 2020 (ACT 1027)
What is a Parental Order?
When an embryo or gamete is introduced into a surrogate, intended parents must apply to the High Court (Family Division) for a parental order, transferring parentage from the surrogate to them.
A parental order under section 22(2) transfers legal parentage and extinguishes the status of the surrogate and her spouse. The intended parents then become the legal parents of the child.
Why is a Parental Order Needed?
Without it:
- Surrogate will be registered as the child’s mother.
- Intended parents will lack authority over major decisions (education, health, etc.).
- The surrogate may retain or reclaim custody.
This applies whether the surrogate is in Ghana or abroad.
How Does a Parental Order Work?
- Similar to an adoption order.
- Involves IVF/artificial insemination—not sexual reproduction.
- Pre-birth application: within 12 weeks of insemination.
- Post-birth application: from 28 days to 6 months after birth.
Post-Birth Procedure
- High Court issues a substitute parentage order.
- District registrar:
- Strikes original birth record.
- Opens a new birth record naming the intended parent.
- Seals the original birth record until the child turns 21.
Late Applications
- Act 1027 does not allow extensions for parental order applications.
- No precedent exists in case law.
- Alternative: initiate a formal adoption process.
What Will the Court Consider?
- Evidence of parentage and existence of surrogacy.
- Surrogate mother’s consent.
If satisfied, the High Court issues a pre-birth parental order, which is shared with:
- District registrar of birth district,
- Intended parent(s),
- Surrogate mother,
- Birth hospital.
Effect of the Parental Order
- Intended parents become the legal parents.
- Surrogate’s parental responsibility is permanently removed.
- The order has lifelong legal status, like an adoption order.