Surrogacy, once shrouded in stigma and relegated to secrecy, has now gained acceptance as a viable option for both prospective parents longing for children and women seeking financial stability.
This arrangement entails a surrogate mother carrying and giving birth to a child on behalf of intended parents who are unable to conceive or carry a pregnancy themselves.
In Ghana, surrogacy is not prohibited by law. Act 1027 of the 1992 Constitution recognizes surrogacy as a legal arrangement, allowing individuals to engage the services of a surrogate mother to assist with childbirth.
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).
An intended parent may engage the services of a person to give the intended parent a child through surrogacy, however, there are some requirements one must meet.
Section 22 of Act 1027 dictates that:
(2) The intended parent may, within twelve weeks after introducing an embryo or gamete into the surrogate mother, apply to the High Court for a pre-birth parental order to allow
(a) either the intended parent or surrogate mother, or
(b) both parents of a child, to be named as the parent of a child born through surrogacy or any other assisted reproductive birth if the birth occurs within twenty-eight weeks of the order of the High Court.
(3) Where the High Court is convinced of the evidence of parentage and the existence of a surrogacy, the High Court shall issue a pre-birth parental order naming the legal parent of the unborn child and a copy of the order shall be issued to
(a) the 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 at a hospital facility.
What more does the law say?
A woman who gives birth to a child shall, in the absence of an order of the High Court naming another person as the mother, be registered as the mother of the child.
(5) Subject to subsection (2), a woman who gives birth to a child shall
(a) have the right to register the child; and
(b) inform the Registration Officer in the district, in which the child is born, of
(i) the name of the child;
(ii) the name of the father of the child; and
(iii) any other information required for the purposes of the registration.
(6) The Registration Officer shall, on receipt of the information required under paragraph (b) of subsection (5), proceed to register the birth of the child in accordance with the information provided.
(7) The District Registrar and where appropriate, the hospital where the child is born, shall
(a) register or cause to be registered in the district office of the Registry, the birth arising from
the surrogacy or other assisted reproductive birth in accordance with the pre-birth parental
order; and
(b) enter or cause to be entered in the register of births, the name of the child provided by
either the intended parent or surrogate mother, or both in accordance with subsection (2).
(8) Where a child is already born, an intended parent or surrogate mother may apply to the High Court for a post-birth parental order or substitute parentage order.
(9) Where the High Court approves an application made under subsection (8), the High Court shall issue a post-birth parental order or substitute parentage order naming the intended parent or surrogate mother as the legal parent of the child, and a copy of the order shall be immediately served on the District Registrar.
(10) A post-birth parental order or substitute parentage order issued under subsection (9) shall, in substance, be in the 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.
(11) The District Registrar shall, on receipt of a sealed substitute parentage order from the High Court, strike out or cause to be struck out the original birth record, and open or cause to be opened 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 High Court.
(12) The District Registrar shall keep the original birth record struck out under subsection (11) in a confidential place, and that birth record shall be made accessible to the child whose birth entry was made only when that child attains the age of twenty-one years.
(13) A new birth record opened under this section shall supersede any other birth record made
earlier.
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