Surrogacy In Ghana: A Medico-legal Vacuum

Author: Estella Elikplim Adabla Esq - Associate at Romanlevi & Associates

Co-Author: Dr. Mrs. Rebecca Acquaah-Arhin - Fellow at West African College of Surgeons and the Ghana College of Physicians and Surgeons.

?Reviewed and supervised by:

• Fiifi Abbam Esq. – Managing Partner, Romanlevi & Associates
• Prof. Yaw Enyonam Kwawukume - President and founder of Family Health Medical School
• Dr. Mercy Anna Nuamah – Senior Research Fellow and Head of Department at Family Health Medical School

Email: [email protected] / [email protected] / Tel. 0277641991

Published by: International Journal of Health and Medical Sciences(IJHMS)( Dec.2023.edtn) @

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Summary:??

Surrogacy is quietly and significantly transforming the concept of family and parenthood, largely fueled by the advancements in reproductive technology and changing social dynamics, as it serves as a significant alternative where traditional methods of conception and pregnancy are not viable.? However, its implementation raises complex legal questions that demand careful consideration, especially in jurisdictions where the legal frameworks are yet to catch up with modern medical advancements.

This article aims to delve into the legal framework of surrogacy in Ghana and the potential limitations it poses in a system struggling to keep pace with evolving reproductive technologies. The potential benefits of surrogacy emphasize the urgency of implementing responsible legal guidelines to ensure that the legal framework is reflective of modern realities, ethical considerations, and the protection of all individuals involved in the surrogacy journey.

Furthermore, this article explores the ethical dimensions of surrogacy in Ghana, emphasizing the importance of informed consent, autonomy, and the potential for exploitation within a largely unregulated environment. It examines the role of medical professionals, surrogacy agencies, and the legal practitioners in facilitating surrogacy arrangements while considering the broader societal implications.

In conclusion, we analyze the implications of Ghana's legislative gaps and discuss potential avenues for regulatory development to ensure the ethical and legal protection of all parties involved in surrogacy arrangements. This article contributes to the broader discourse on surrogacy ethics and legislation, offering valuable insights for policymakers, healthcare practitioners, the legal professionals and individuals seeking to engage in surrogacy in Ghana.

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Keywords: Assisted reproduction, surrogacy journey, parenthood, pre-birth parental order, post-birth parental order, legal protection, Legal Medical Dilemma.

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Introduction

Surrogacy is the practice where, by an agreement, a woman (the surrogate mother) carries a child for another person (the commissioning parent(s)) prior to conception with the intentions that once the child(ren) is/are born, it would be handed over to the commissioning parent. Surrogacy gained popularity in the 1980’s when it gained international recognition after the first successful gestational surrogate pregnancy was recorded in the United States of America in the year 1986.[1] However, the notion of such arrangements is not entirely new, having been documented from biblical times. In the Book of Genesis Abram’s wife Sarai, who had no children, instructed her husband to sleep with her servant Hagar so that Sarai might have a family through such means. It could perhaps have served as a salutary lesson for more recent times to note that subsequently, Sarai (the social mother) drove Hagar (the biological mother) and the resultant child Ishmael from Abram’s house.2 In the heart of Ghana, against the backdrop of rich cultural traditions and evolving societal norms, surrogacy is also gaining popularity and challenging Ghana's traditional perspectives on motherhood and the intricate tapestry of familial bonds.

In a society where often times than not, expectations may clash with reality, a couple faced with the issue of infertility which they could have never predicted, or a woman with a condition of high-risk pregnancies leading to multiple miscarriages, or a single adult with the hope of having children of their own yet is unmarried, should not remain shattered because of their inability to have children on their own.3

In a society like Ghana where the family unit is only complete mostly when children are brought forth, society becomes insensitive to couples or single adults who do not have children and this can have profound emotional, psychological, social, and even physical effects on these individuals and couples.4

Surrogacy provides a ray of hope for couples struggling with these unfortunate harsh realities of life and unforeseen circumstances by providing a solution where the intended parent(s) entrust the pregnancy to a healthy woman, the surrogate, who can carry it safely.

While surrogacy offers a beacon of hope, its implementation raises complex legal questions that demand careful consideration, especially in jurisdictions where the legal frameworks are yet to catch up with modern medical advancements. It is important to consider the medical risks associated with surrogacy and find a balance between the ethical, legal, scientific, and social aspects of surrogacy to ensure the welfare of all parties involved.

In the Ghanaian context, the absence of comprehensive legislation addressing surrogacy has given rise to a legal vacuum, inviting a closer examination of the implications, uncertainties, and potential solutions surrounding this intricate issue.

This article aims to delve into the legal framework of surrogacy in Ghana and the potential limitations it poses in a system struggling to keep pace with evolving reproductive technologies

Ghanaian Law and surrogacy:

Surrogacy is not explicitly regulated by a comprehensive legal framework in Ghana; however, it is guided by the Registration of Births and Deaths Act, 2020 (Act 1027), passed into law on 6th October, 2022 and provides mainly for the registration of births, foetal deaths and deaths in the country. Key but not glaring from the title of the law is that it effectively legalizes Surrogacy as a form of Assisted Reproductive Birth under Ghanaian law.

Section 22 of Act 1027provides for the Registration of Assisted Reproductive Birth and Related Matters. Section 22(1) provides? that “An intended parent may engage the services of a person to give the intended parent a child through surrogacy” 5? By this, the law generally recognizes any arrangement where a woman is engaged as a surrogate to carry and give birth to a child with the sole aim of handing over the child to the intended parent(s)as per an agreement previously entered into by the parties.

The law specifies the various types of surrogacy that can be conducted and defines those means of surrogacy as an arrangement where;

1. An embryo formed from an egg and sperm of persons other than the surrogate mother and the partner or husband of the surrogate mother is implanted into the surrogate mother;
2. A gamete from a person other than the partner or husband of the surrogate mother is introduced into the surrogate mother to fertilize the egg of that surrogate mother. 6

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The two types of surrogacies are termed as gestational surrogacy and traditional surrogacy ????respectively.

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Pre-Birth Parental Order

Act 1027 requires that within twelve weeks after introducing an embryo or gamete into the surrogate mother, the intended parent may apply to the High Court for a Pre-Birth Parental Order naming either the intended parent or the surrogate mother or both parents of a child as the parent of a child born through surrogacy or any other assisted reproductive birth.7

The High Court shall only issue a Pre-Birth Parental Order naming the legal parents of the unborn child when the court is convinced of the evidence of parentage and the existence of a surrogacy arrangement between the parties, that is, the intended parents and the surrogate mother.

??In the absence of a Pre-Birth Parental Order, the surrogate mother shall be named the mother of the child born and shall have the sole right to register the child and to inform and provide all necessary information required for the purposes of registration of the child.9

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Post-Birth Parental Order

This is acquired where the intended parents were unable to acquire a Pre-Birth order, the Act provides for the intended parents or the surrogate mother to apply to the High Court for a Post-Birth Parental Order or a Substitute Parentage Order.10

A Post-Birth Parental Order is issued by the High Court to name a person as the legal parent of a child who has already been born however whose parents is yet to be registered whereas a Substitute Parentage Order is issued by the High Court naming a person as the legal parent of a child born to another person and who until the determination of the court may have been recognized as the parent of the said child.11

A Post-Birth Parental Order or a Substitute Parentage Order is in substance an adoption proceeding and the application should be made to the High Court for an order naming the legal parents of the child at least twenty-eight days after the birth of the child but not later than six months after the birth of the child.12

Where a birth record has already been opened for a child born through a surrogacy arrangement, the District Registrar on receipt of a sealed Substitute Parentage Order is to strike out the original birth record of the child and cause a new birth record to be opened in accordance with the court’s orders.13

It is worth appreciating that there is now a stipulated legislation which legalizes surrogacy and to some extent provides a procedure for the acquisition of a parental order.14 However, it is also worthy to note that in the pattern of legal landscapes around the world, the absence of a comprehensive legal framework governing surrogacy in Ghana stands at a glaring gap that cannot be ignored.

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The challenges of the Surrogate mother

Being a surrogate may involve emotional, psychological, medical, and health risks that can vary depending on factors such as the specific surrogacy arrangement, the surrogate's individual circumstances, and the support and care provided throughout the process. Surrogates may experience a range of feelings including attachment to the baby, grief upon separation, and potential psychological distress.15 The process of carrying a child for someone else can be emotionally challenging, especially if there is a strong bond formed between the surrogate and the baby. Studies have shown that handover of the baby after delivery might cause psychologic stress and promote psychologic problems in surrogate mothers. Surrogates may face stress, anxiety, and potential conflicts over parental rights.15,16 The surrogate mothers might form a close bond with the baby in prenatal period and therefore, might have an increased risk of psychological problems.17 The decision to become a surrogate and the potential impact on their own family dynamics can also contribute to psychological challenges.15 Medically, surrogates may undergo invasive procedures such as egg retrieval and embryo transfer, which carry their own risks including infection, bleeding, and damage to surrounding organs.18 The use of fertility medications to stimulate egg production can also have side effects such as ovarian hyper stimulation syndrome.18 The use of in vitro fertilization and embryo transfer technologies increases the frequency of multiple pregnancies, which increases the risk of cesarean section, premature birth, low birth weight in newborns.19 Also, hormonal imbalance under the effect of adverse factors during surrogate pregnancy may initiate prenatal reprogramming organogenesis and predispose to susceptibility to various diseases.19 Surrogate mothers may experience pregnancy and childbirth complications such as preterm labor, pregnancy-induced hypertension, disturbance of glucose metabolism, gestational diabetes, preeclampsia and elective cesarean section that need specific prenatal care during pregnancy.15,17

The specific surrogacy arrangement can also influence the risks involved. For example, commercial surrogacy, which involves financial compensation beyond medical expenses, may introduce additional ethical and legal considerations.20 The involvement of close relatives as surrogates, as allowed in some cases, may raise concerns about the potential for blurred family relationships.20

The vacuum existing because of a lack of comprehensive regulation

The absence of a tailored surrogacy legislation in Ghana is a disservice to all parties involved, perpetuating a climate of uncertainty and potential exploitation. In the absence of legal guidance, issues such as parental rights, the commercial nature of surrogacy, the surrogate's consent, storage of sperms, eggs and embryos shall remain unregulated and this can lead to serious legal repercussions. There is the need for an urgent enactment of a comprehensive regulation to govern surrogacy. A critical analysis of section 22 of Act 1027 leads to the realization that the law only provides for the procedure for the registration and the recording of only the birth of the child(ren) born through surrogacy and the acquisition of a parental order. This creates a vacuum, on the legal rights and duties of the surrogate mother, the gamete donor (where applicable), child(ren) born through surrogacy, and that of the intended parents, the duties and obligations of the Fertility Clinic or hospital in which the process took place, in providing adequate regulations in adopting either commercial or altruistic surrogacy.

Exploitative tendencies

The lack of legal safeguards opens the door to exploitative practices within the realm of surrogacy. Without a binding regulation, surrogates or even the donors may find themselves in situations where their rights are compromised, their consent is coerced or not sought at all, and their compensation is unjustly low. This leaves them susceptible to emotional, psychological, and financial exploitation, particularly in a society where traditional norms can sometimes overshadow modern ethical considerations. Act 1027 leaves a vacuum as to who has the capacity to donate where a donor sperm and a donor egg is used for the procedure. A host of questions as to: Whether or not only an adult can donate their sperm or eggs or a child of reproductive age has the capacity to donate, how consent is acquired to donate and many more gaps to be filled.

The law also fails to recognize the legal complications that may arise in this area of law where all parties seem to be vulnerable and there are a number of unreported case precedents in court to guide in making a more comprehensive and a well thought out legislation.

The Surrogacy agreement

A surrogacy regulation that overlooks the necessity of addressing surrogacy agreements leaves a void that undermines the integrity and fairness of the entire process. Section 22 of Act 1027 fails to explicitly address surrogacy agreements and disregards the critical importance of formalizing the rights, obligations and liabilities of surrogate mothers, intended parents, and other stakeholders. Without a clear and binding legal agreement, the surrogacy journey is susceptible to uncertainties, legal disputes, and potential exploitation. The provision in Act 1027 as compared to other regulations of surrogacy in other states leaves a vacuum on the form of the contract, the parties, the capacity of the parties and other standard requirements to be complied with in a surrogacy agreement. Section 22 (1) only provides that an intended parent may engage the services of a person to give the intended parent a child through surrogacy. As laudable as this section may seem, it only implies that there are only two parties to a surrogate agreement.5 It is important to mention that the parties to a surrogacy agreement are three parties which include the fertility clinic or the professional carrying out the procedures or even more when the donors are also different persons.

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Cost and Ignored parenthood rights

Intended parents in Ghana already face a stressful journey of seeking cultural and societal recognition for their parenthood as well as the cost involved in surrogacy.??? Act 1027 does not provide a regulation for the cost of surrogacy in Ghana with regards to the Surrogates fees and maintenance, medical fees, agency fees and legal fees as well as other cost.? However, the cost involved in engaging in surrogacy may range from Ghs150,000 more or less depending on the facilities, persons and professionals required for the services provided.21

The lack of a comprehensive surrogacy legislation raises questions about the rights, responsibilities, and obligations of intended parents. The legal framework even though provides an avenue to secure parental orders from the court pre-birth and post birth, the present Act 1027 fails to provide a clear avenue for intended parents when they are unable to make the application for the said orders after the stipulated time. The act fails to make room for extension of time for those parents who are not aware of the fact that they have to seek the orders of the court to make them parents of the child(ren). Presently, a parent has to proceed to court for an order to seek an extension of time to file the said application. Some judges, from experience may refuse to grant the said order because the Act is silent on what should be done in such an instance or the court may infer from other areas of law in order to remedy the situation. It becomes necessary for the creation of the necessary awareness for all stakeholders including intended parents to become aware of all relevant steps to take to fully obtain their legal parental rights over the children they commissioned through surrogacy.

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The welfare principle

Section 2 Act 560 as Amended by Act 937 provides that:

?(1) the best interest of a child shall be paramount in any matter concerning a child.

(2) the best interest of the child shall be the primary consideration by any court, person, institution or other body in any matter concerned with a child.22,23

Article 28 provides for the rights of children and clause 1 stipulates that: Parliament shall enact such laws as are necessary to ensure that:

(3) parents undertake their natural right and obligation of care, maintenance and upbringing of their children in co-operation with such institutions as Parliament may by law, prescribe in such manner that in all cases the interests of the children are paramount;

(4) children and young people receive special protection against exposure to physical and moral hazards; and

(5) the protection and advancement of the family as the unit of society are safeguarded in promotion of the interest of children.24

Primarily, surrogacy is focused on providing an opportunity to intended parent(s) to fulfil their dreams of procreating and the constitution recognizes the protection and advancement of the family as unit of society. Paramount to the advancement of the family unit is the welfare of the child which has always been the determining factor in most legislations which concerns children. An Act such as Act 1027 which seeks to legalize surrogacy yet omits to speculate what happens to a child born out of surrogacy where both the surrogate and the intended parent become incapable of taking responsibility of such a child, this leaves more room for speculations on surrogacy as against what is stipulated in the constitution and the Children’s Act.

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Duty of care owed

Fertility clinics and lawyers play crucial roles in surrogacy arrangements, each with specific duties of care to ensure the well-being, rights, and interests of all parties involved. However, as scanty as section 22 of Act 1027 is, a mention of the standard of duty owed by the professionals involved in a surrogacy process would assist in regularizing and the managing the level of expertise needed. This is such a sensitive area so much so that, these professionals could be held liable where they fail to meet up the with regulated standards.

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Cultural complexity

Ghana's rich cultural traditions add an additional layer of complexity to the surrogacy debate. The lack of legal guidance hinders the harmonization of modern reproductive practices with age-old customs, leading to inconsistent approaches that neither respect traditional values nor protect the rights of all parties involved.

The way forward

Critiquing the Ghanaian surrogacy legal framework is not an exercise in negativity but a call for meaningful change. A well-crafted and comprehensive legal framework is long overdue-a framework that recognizes the importance of informed consent, fair compensation, and clear parental rights. This framework should strike a balance between protecting the rights of all stakeholders and respecting the cultural diversity that defines Ghanaian society.

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Conclusion

As we shine a light on the inadequacies of the surrogacy legal framework in Ghana, we must recognize that criticism is a tool for progress. Our critique does not undermine the potential benefits of surrogacy but rather emphasizes the urgency of implementing responsible legal guidelines. With a society that is evolving, it is our collective responsibility to ensure that the legal framework is reflective of modern realities, ethical considerations, and the protection of all individuals involved in the surrogacy journey. Only through constructive criticism can we pave the way for a more just, inclusive, and transparent surrogacy system in Ghana.

Acknowledgement

Authors wish to thank Ms. Cynthia Oyekunle for technical assistance.

Conflict of Interest

Authors declare that they have no conflicting interest.?

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References

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24.? The 1992 Constitution of the Republic of Ghana, (Ghana Publishing Company Limited, Assembly Press, Accra. A701/300/9/98 pp. 28)

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