Dr. Osei Bonsu Dickson, FCIMArb, ArbP
Introduction
Ghana’s Registration of Births and Deaths Act, 2020 (Act 1027) came into full effect on October 6, 2020, with the aim of regulating the registration of births, foetal deaths, and deaths within the country. While the Act addresses a wide-ranging aspects, this Q&A focuses on its implications for surrogacy and other assisted reproductive birth matters.
Engaging a Surrogate
Following the enactment of the law, individuals have the legal right to enlist the services of a surrogate, defined as an intended parent seeking parenthood through surrogacy or assisted reproductive arrangements.
Definition of 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]
Under Ghanaian law, surrogacy pertains to situations where an embryo, formed from the genetic material of individuals other than the surrogate mother and her partner or husband, is implanted into the surrogate mother. It also includes cases where a gamete from someone other than the surrogate mother’s partner or husband is used to fertilize her egg.
Compliance Procedure
To comply with the law, the initial step involves obtaining a Pre-Parental Order from the High Court within 12 weeks of introducing an embryo or gamete into the surrogate mother. This order, granted by the court, allows the intended parent or surrogate mother (or both) to be legally recognized as the parent of the child. It is crucial for the birth to occur within twenty-eight weeks of the High Court’s order.
Post-Order Proceedings
Upon the issuance of the Pre-Birth Parental Order by the High Court, designating the legal parent of the unborn child, copies are distributed to the District Registrar, intended parent, surrogate mother, and the hospital of birth (if applicable). Without this order, the child will not be acknowledged as that of the intended parents, with the surrogate mother being recognized as the legal mother.
Importance of Pre-Birth Parental Order
The Pre-Birth Parental Order is vital, as its absence means the child will not be legally recognized as the offspring of the intended parents, with the surrogate mother listed as the legal mother.
Fallback Option:
Post-Birth Parental Order In cases where a Pre-Birth Parental Order was not obtained, parties involved have the option to apply for a Post-Birth Parental Order at the High Court. This application, akin to adopting the child, must be submitted at least twenty-eight days after birth but no later than six months after birth.
Surrogacy Birth Registration Procedures
Act 1027 outlines a structured process for the registration of births through surrogacy in Ghana, ensuring the rightful recognition of parental rights for Intended Parents or Surrogate Mothers. To initiate this, an application must be submitted to the High Court for a pre-birth Parental Order. This order has the authority to designate either an intended parent, surrogate mother, or both as the legal parents of the child born through surrogacy, conferring upon them the corresponding parental rights. Failure to obtain a pre-birth Parental Order results in the Surrogate Mother being officially recognised as the mother of the child, along with associated parental rights.
Timelines for Application
Anecdotal evidence suggests that many clients do not adhere to the legal processes, this however could create grave problems. To adhere to the legal process, an application for a pre-birth Parental Order must be filed within twelve (12) weeks of introducing an embryo or gamete into the surrogate mother. Additionally, the birth of the child must occur within twenty-eight (28) weeks of the High Court’s order being granted.
Post-Order Procedures
Upon the issuance of a pre-birth Parental Order, a copy specifying the legal parents of the child is distributed to the District Registrar, Intended Parent, Surrogate Mother, and the hospital of birth (if applicable). Subsequently, the District Registrar undertakes the registration of the child’s birth.
Options for Unregistered Births
For a child born through surrogacy without a pre-birth Parental Order, the law permits the intended parent or surrogate mother to apply to the High Court for a post-birth Parental Order or a Substitute Parentage Order. This proceeding is akin to adoption and must be initiated within twenty-eight (28) days after birth but no later than six (6) months after birth. The High Court, satisfied with the existence of surrogacy, will then issue the post-birth Parental Order or Substitute Parentage Order, officially naming the intended parent or surrogate mother as the legal parent.
Distinguishing Between Orders
A post-birth Parental Order is issued when there is no existing registration related to the birth resulting from surrogacy. Conversely, a Substitute Parentage Order is applicable when a birth record has already been entered in the registry. In such cases, the Substitute Parentage Order directs the District Registrar of Births to amend the record in accordance with the court’s order.
Conclusion: Future of Surrogacy in Ghana
At Lex Mundus & Cencla we believe that Act 1027 is a positive step in providing a legal framework for surrogacy, the absence of comprehensive legislation governing assisted birth arrangements, including surrogacy, leaves room for potential abuse and unethical practices. The forthcoming Assisted Reproductive Technologies Bill, 2021 is expected to address these issues, safeguarding the rights of surrogate mothers, unborn children, and commissioning parents within a well-defined legal framework.