Introduction
Assisted Reproduction Technology (ART) is gradually replacing the traditional conception methods as it is able to meet the needs of couples and individuals. It is used to treat infertility and, in some instances, adopted by some couples due to its convenience. ARTs can be defined as all the fertility treatments in which either eggs or embryos are handled. ART procedures typically involve the surgical removal of eggs or embryos from a woman’s ovaries; the egg is combined with the sperm in the laboratory, and returned to the woman's body or donated to another woman. Examples of ARTs include surrogacy or gestational carrier, in vitro fertilization (IVF), and Gamete intrafallopian transfer (GIFT).
This article discusses the types of surrogacies, the law on surrogacy in Ghana, including future implications, as well as the law on surrogacy in some jurisdictions such as the United Kingdom (UK) and South Africa.
Definition of surrogacy
Surrogacy is a type of pregnancy in which a woman carries and births a baby for a person who is unable to have children. The Registration of Births and Deaths Act, 2020 (Act 1027) defines surrogacy as an arrangement where (a) an embryo is formed from an egg and a sperm of persons other than a surrogate mother and the partner or husband of that surrogate mother, or
(b) a gamete from a person other than the partner or husband of a surrogate mother which is introduced into the surrogate mother to fertilize the eggs of that surrogate mother, to enable the surrogate mother to carry the fetus for the period of the pregnancy and give birth at the end of the period on behalf of another woman or the intended parent.
Types of surrogacies
There are two types of surrogacies; the first is traditional surrogacy which is where the pregnancy is carried by the egg donor. The second is referred to as gestational carrier; this is where the pregnancy is carried by another woman who has no genetic relationship with the baby. If the embryo is to be carried by a surrogate, pregnancy may be achieved through insemination alone or through ART. ¬The surrogate will be biologically related to the child in the case of traditional surrogacy. If the embryo is to be carried by a gestational carrier, the eggs are removed from the infertile woman, fertilized with her partner’s sperm, and transferred into the gestational carrier’s uterus. ¬The gestational carrier will not be genetically related to the child. The definition of surrogacy in the interpretation section of Act 1027 makes this distinction.
There is also Altruistic and Commercial surrogacies. Altruistic surrogacy refers to surrogates who do not get paid, but only receive reimbursement for their medical costs, and other reasonable pregnancy-related expenses. Many altruistic arrangements are between family members or close friends. This is allowed in countries such as India, Ukraine, and South Africa. The alternative to altruistic surrogacy is commercial surrogacy; here, the surrogate is fairly compensated for her time and energy, the sacrifice of carrying a baby to term, and the physical and emotional challenges she faces throughout the surrogacy process. In Ghana, the average surrogacy cost is about GHc 150,000.
The law of surrogacy in other jurisdictions
Surrogacy in the UK
Surrogacy is legal in the UK although a surrogacy agreement is unenforceable under their law. The legal parent at birth of a child born with a surrogate is the surrogate. If the surrogate is married or in a civil partnership, their spouse or civil partner will be the child’s second parent at birth, unless the said partner or spouse did not give their permission.
Legal parenthood can be transferred by parental order or adoption after the child is born. If there is disagreement about who the child’s legal parents should be, the courts will make a decision based on the best interests of the child.
In drafting surrogacy agreements, the intended parents and surrogate can record how they want the arrangement to work in the contract. However, surrogacy agreements are not enforceable by UK law, even if there is a signed document and expenses incurred as a result of the arrangement. It is important to note that, an intending parent is not permitted under UK law, to pay a surrogate except for her reasonable expenses.
South Africa
The law on surrogacy is regulated in South Africa (SA) under chapter 19 of the Children’s Act 2005, Act 38 of 2005. There are comprehensive laws governing surrogacy since it has been in practice since the 1990s . The regulation of this means that in order for future parents to make use of a surrogate they need to comply with the provision of the Act. Failure to comply with the provisions of this Act will affect the rights and obligations of the parties with regards to the child. The parties will have to comply with the Children’s Act after concluding their written agreement, which is subject to confirmation by the High Court. An order by the court must be given prior to the insemination of the surrogate. In SA, a surrogate mother’s motivation must be altruistic. She is not to receive any financial benefit, except medical expenses or loss of income as a result of the arrangement. One of the commissioning parents need to be the biological parent of the child, and the surrogate mother and commissioning parents must be domiciled in South Africa. Provided the agreement is confirmed by the High Court, a child/children born from a surrogate mother will, by law be regarded as the lawful child/children of the commissioning parents, and the surrogate mother and her partner will have no parental rights or obligations towards the child.
The current law governing surrogacy in Ghana
Ghana first introduced ARTs in its law, when Parliament passed the Registration of Births and Deaths Act 2020, Act 1027. This law makes provision for the registration of deaths and births including births as a result of Assisted Reproduction Technology, specifically surrogacy. However, prior to the coming into force of this Act, there was no law governing ARTs or the registration of births as a result of ART. The introduction of this in Act 1027 is a new phenomenon in Ghana’s legal jurisprudence even though it has been in practice for quite some time now.
Surrogacy or surrogacy agreement was purely contractual before the coming into force of the Act. Presently, parties can register these births. This registration transfers parentage from the surrogate mother to the intended parent(s).
The law provides that an intended parent may engage the services of a person to give the intended parent a child through surrogacy. This provision of the law now permits prospective parents to engage the services of a surrogate. In order for the intended parent to be the legal parent of the child, the Act provides for the intended parent to obtain a parental order for the transfer of parentage from the surrogate. The parental order can either be a pre-birth or post-birth order, obtained from the High Court.
Pre-Birth parental order
This is an order transferring parentage obtained from the High Court before the birth of the child. The law directs that a pre-birth parental order should be obtained from the High Court within twelve weeks after introducing an embryo or gamete into the surrogate mother. This type of parental order allows either the intended parent or surrogate mother or both parents of a child to be named as the parent of the child.
The law further provides that the High Court judge shall issue the pre-birth parental order naming the legal parent of the unborn child after he or she is convinced of the evidence of parentage and the existence of surrogacy. The order shall 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 occurs at the hospital facility.
Post-Birth Parental Order
Post Birth parental order is an order that is given when a child has already been born. The intended parent or surrogate mother may apply to the High Court for a post-birth parental order or substitute parentage order. A post-birth parental order is a form of an adoption proceeding and shall be lodged at the High Court at least twenty-eight days after the birth of the child but not later than six months after the birth of the child. The District Registrar shall upon the receipt of a sealed substitute parentage order from the High Court, strike out or cause to be struck out of the original birth record and open a new birth record with the intended parent or surrogate mother named as the parent of the child, in accordance with the order of the court.
One will realize that this development of law has only made way for the registration of births as a result of surrogacy. However, there is a lacuna in the regulation of ARTs in relation to surrogacy agencies/clinics, recruitment policy and the compensation to be given to the surrogate after birth. This lacuna has resulted in unethical practices and the abuse of these methods specifically surrogacy in Ghana. The law does not make mention of how the surrogate agreement is to be drafted, nor the agencies mandated to regulate the said agreement or enforce same.
Most surrogacy contracts are entered into by persons with limited knowledge about what a surrogacy agreement should consist of. Moreover, the surrogate is usually in desperate need of the money and therefore enters into the contract without paying particular attention to the agreement. As a result, most surrogacy agreements end up being beneficial to the agents and just the fertility clinics at the expense of the surrogates. There is no mutuality in the agreement since both parties lack equal bargaining powers.
This is evident in the reportage on Myjoyonline.com dated 12 January, 2015. According to the story, Ms. Vanga Denise rented out her womb to an unknown client and was carrying quadruplets but was being cheated out of an agreement made with the fertility centre which “employed” her. Ms. Vanga was informed of the opportunity to rent her womb for a fee and got in touch with an agent who in turn introduced her to doctors at the Mount Camel Fertility Centre at Dowena. She was promised an amount of GH¢10,000 for the child she was to bear for an unknown client. She was also promised a monthly stipend of GH¢400 as well as a rented room for herself and her three-year-old son. Denise underwent procedures at the City of Hope Medical Complex and Research Centre, after which she conceived. In a surprise twist of fate, all four inseminated eggs placed in her womb proved viable and Denise found herself carrying quadruplets for a client she had never had contact with. Despite fulfilling her end of the bargain, the promised rented apartment was never provided, and even more alarming was her confirmation that she had no prior written contract with Mount Camel Fertility Centre. Attempts by her to get the centre to stick to their end of the bargain pertaining to accommodation proved unsuccessful.
There have been a lot of cases similar to that of Ms. Vanga, who has been cheated out of their monies. Most of these agents target “kayayo girls” who are in desperate need of money. This is as a result of how unregulated this area of medical practice is.
Possible future holdings of the law
One would have thought that after taking a while to incorporate this concept the law would have been comprehensive, however, the law is a subsidiary of the Registration of Births and Deaths Act. This recognition legalizes ARTs specifically surrogacy. However, it is imminent that a comprehensive law is enacted to govern this method to meet societal standards.
In October 2021 the President of the Fertility Society of Ghana Dr. Edem K Hiadzi indicated that the society had worked on a document that will be presented to parliament after final consultation with the stakeholder group. The Assisted Reproductive Technologies Bill, 2021 when approved is said to regulate the activities of fertility centers and agents running such services across the country. Its regulation will protect couples, surrogates, donors, agents, health professionals, and the facilities offering them.
The expectation is that the Bill contains sections that regulate the criteria for the selection of surrogate and surrogacy agreements, protection of the rights of surrogates and intended parents, and the calculation of compensation.
References
1. Section 48 of Registration of Births and Death Act 2020, Act 1027
2. Assisted Reproductive Technology a guide for Patients by American Society for Reproductive Medicine
3. Surrogate.com
4. Section 22(1) of Act 1027
5. Section 22 (2) of Act 1027
6. Section 22(8) & (9) of Act 1027
