20 Jan A New Path For Surrogacy in Ghana: What You Need To Know
Until the passage of the Registration of Births and Deaths Act, 2020 (Act 1027) there was no legal recognition of surrogacy or any other assisted reproductive birth in the Ghanaian legal framework. The enactment of Act 1027, now places surrogacy firmly on the legislative map as a legal arrangement in Ghana and permits individuals to engage the services of another person to assist with childbirth through surrogacy. The recognition however is not complete. For its debut in Ghana’s legislative regime, surrogacy is presented as ancillary within a substantive legal framework for registering births and deaths. A step in the right direction nonetheless, for a well- established arrangement lacking in laid down procedures and regulation.
What is Surrogacy?
Act 1027 defines Surrogacy as:
(a) an arrangement where an embryo formed from the egg and sperm of persons other than that of a surrogate mother and her partner or husband is implanted into the surrogate mother; or
(b) where a gamete is introduced into a surrogate mother to fertilise the egg of the surrogate mother, for the purpose of enabling the surrogate mother carry the foetus and give birth on behalf of the Intended Parents[1] (i.e. the person who desires to be a parent through surrogacy or any other assisted reproductive birth arrangement).[2]
What is the procedure for registering births through surrogacy under Act 1027?
The law provides procedural guidelines for surrogacy arrangements in order to guarantee legal recognition of the parental rights of an Intended Parent or Surrogate Mother. In the first instance, an application must be made to the High Court for a pre-birth Parental Order. A pre-birth Parental Order may name an intended parent or a surrogate mother or both as the parent of a child born through surrogacy and confer parental rights on the persons named as legal parents of the child. In the absence of a pre-birth Parental Order, the Surrogate Mother will be named as the mother of the child with associated parental rights.
Are there timelines regulating the application for a pre-birth Parental Order?
An application for pre-birth Parental Order must 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.[3]
What happens following the grant of a pre-birth Parental Order?
A copy of the pre-birth Parental Order naming the legal parents of the child shall be issued to the following;
i) The District Registrar of the district in which the child will be born;
ii) The Intended Parent;
iii) The Surrogate Mother; and
iv) The hospital where the child is born, if the birth occurred at a hospital facility.
The registration of the birth of the child shall then be undertaken by the District Registrar.
What arrangement is available for a child born through surrogacy without a pre-birth Parental Order from the High Court naming the legal parents of the child?
In the absence of a pre-birth Parental Oder, 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. The High Court upon satisfaction that there exists surrogacy shall 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.
What is the difference between a post-birth Parental Order and a Substitute Parentage Order?
A post-birth Parental Order is issued where there has been no form of registration pertaining to the birth arising from the surrogacy. A substitute Parentage Order on the other hand is issued where a birth record has already been entered in the registry. In this regard, the 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.
What does the future hold for Ghana Surrogacy Law?
The statutory recognition of surrogacy and the provision for its registration is a welcome intervention within Ghana’s legal framework, providing a secure framework within which participants in this arrangement can contract freely subject to established guiding principles. However, the absence of a comprehensive legislative framework regulating assisted birth arrangements including surrogacy, leaves room for the abuse of rights and unethical practices associated as collateral damage.
It is expected that, the draft ASSISTED REPRODUCTIVE TECHNOLOGIES BILL, 2021 when passed, will address potential issues that arise in surrogacy and other forms of assisted birth arrangements in the best interests of surrogate mothers, the unborn child and the commissioning parents.
This publication may provide a summary of legal issues but is not intended to give specific legal advice. If you require legal advice, please speak to a qualified lawyer, which may include a qualified member of our legal team at B&P ASSOCIATES (info@bpaghana.com).
AUTHORS:
Fawzya Medhat Khalil (Legal Associate)
Abdul Aziz Gomda (Trainee Legal Associate)
[1] Registration of Births and Deaths Act, 2020 (Act 10207), Section 48
[2] Registration of Births and Deaths Act, 2020 (Act 1027), Section 22(2)
[3] ibid