Surrogacy Under Ghanaian Law

Introduction

On 6th October 2020, Ghana’s President assented to the Registration of Births and Deaths Act, 2020 (Act 1027) effectively bringing the law into force. The law aims to, amongst others, provide for the registration of births, foetal deaths, and death in the country. What is not obvious from the long title of the Act is the law’s incursion into the area of surrogacy, and other assisted reproductive birth issues. This Q&A sets some of the key provisions contained in the Act dealing with surrogacy and other assisted reproductive birth issues.

With the passage of the Act, can a person engage the services of a surrogate?

Yes, the law recognises the right of an intended parent (i.e., a person who desires to be a parent through surrogacy or any other assisted reproductive arrangement) to engage the services of a surrogate for that purpose.

What exactly does surrogacy mean under the law?

It simply refers to the situation 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.

Now that it is legal, are there any steps that I must take to comply with the law?

The first step in complying with the law is to obtain a Pre-Parental Order at the High Court.  The application for the Pre-Parental Order must be made within 12 weeks after the introduction of an embryo or gamete into the surrogate mother. The order when granted would allow the intended parent or the surrogate mother (or both of them) to be named as the parent of a child. It is important that the birth must occur within twenty-eight weeks of the order of the High Court.

What happens after the High Court issues the Pre-Birth Parental Order?

Once the court is satisfied with the existence of the surrogacy and the issue of parentage, the High Court shall issue the Pre-Birth Parental Order. The Pre-Birth Parental Order must name the legal parent of the unborn child. And a copy of the order will be given to the (a) District Registrar of the district in which the child will be born; (b) the intended parent; (c) the surrogate mother; and (d) the hospital where the child is born (if the birth occurs in a hospital)

Why is the Pre-birth Parental Order so important?

In the absence of a Pre-Birth Parental Order, the child will not be recognised as that of the intended parents. Rather, the surrogate mother is named as the mother of the child.

Does the surrogacy arrangement fall away simply because one failed to obtain a Pre-Birth Parental Order?

Technically, yes. But the law provides the parties with another opportunity to regularise the nature of the intended relationship. The parties to the surrogacy arrangement may apply to the High Court for a Post-Birth Parental Order. It is important to note that the Post-Birth Parental Order is in substance an application seeking to adopt the child. The application must 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.  

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