1. Introduction
Ghana’s labour law has, since 2003, guaranteed working women a period of paid maternity leave under section 57 of the Labour Act, 2003 (Act 651). The provision was drafted at a time when “motherhood” in the employment context was assumed, almost without question, to mean a woman who conceives, carries, and delivers her own child. Advances in assisted reproductive technology (ART) and, in particular, the growing use of surrogacy arrangements in Ghana have unsettled that assumption. A surrogate mother also conceives (in the case of traditional surrogacy) or carries (in the case of gestational surrogacy), undergoes the physical and psychological demands of pregnancy, and delivers a child, yet she does so on behalf of another person or couple who will become the child’s legal parent(s). The question this paper addresses is whether such a woman, if she is an employee, is entitled to the same statutory maternity leave as any other pregnant worker under section 57 of Act 651.
This is a genuine doctrinal gap. Act 651 does not mention surrogacy at all, and Ghana’s principal legislative response to surrogacy the Registration of Births and Deaths Act, 2020 (Act 1027) addresses only the registration of the child’s birth and the determination of legal parentage; it says nothing about the employment rights of the woman who carries the pregnancy. The paper proceeds in five parts. Part 2 explains the underlying concepts surrogacy, the surrogate mother, and statutory “leave” as a foundation for the analysis. Part 3 sets out and analyses section 57 of Act 651. Part 4 examines Ghana’s surrogacy framework under Act 1027. Part 5 brings the two together and argues, on both textual and purposive grounds, that a surrogate mother who is an employee within the meaning of Act 651 is entitled to maternity leave on the same basis as any other pregnant worker, subject to important qualifications concerning her employment status and the position of the intended (commissioning) mother. The paper concludes with recommendations for legislative clarification.
2. Conceptual Framework
2.1 The Concept of Surrogacy
Surrogacy is an arrangement by which a woman agrees to become pregnant and give birth to a child for another person or couple the “intended parent(s)” who will assume legal and social parenthood of the child after birth. Two broad forms are recognised internationally and, implicitly, under Ghanaian law:
- Traditional (or genetic) surrogacy, in which the surrogate’s own egg is fertilised, typically by artificial insemination using the sperm of the intended father or a donor, so that the surrogate is the genetic mother of the child.
- Gestational surrogacy, in which an embryo created from the gametes of the intended parents or donors (but not the surrogate’s own egg) is implanted in the surrogate’s womb, so that she carries and delivers a child to whom she has no genetic connection.
Ghana’s Registration of Births and Deaths Act, 2020 (Act 1027) is the first Ghanaian statute to define surrogacy in law. Section 48 of the Act, in substance, describes surrogacy as an arrangement in which an embryo formed from the egg and sperm of persons other than the surrogate and her partner is implanted in the surrogate, or a gamete from a person other than her partner is introduced to fertilise her own egg, so that she carries the pregnancy and gives birth on behalf of another woman or the intended parent. This definition deliberately captures both the gestational and the traditional forms of the arrangement. What is significant for present purposes is that, in either form, the woman who is pregnant and who gives birth is not, in law, the person who will ultimately be recognised as the child’s mother a structural feature that distinguishes surrogacy from ordinary pregnancy and creates the interpretive difficulty this paper addresses.
2.2 The Concept of the “Surrogate Mother”
A surrogate mother is, in the plainest sense, the woman who physically carries the pregnancy and gives birth to the child under a surrogacy arrangement, as opposed to the “intended” or “commissioning” parent(s) who will assume legal parenthood. Act 1027 defines her along these lines: a woman who has accepted, under a surrogacy agreement, to carry a foetus for the period of the pregnancy and to give birth to a baby at the end of that period on behalf of another woman or the intended parent. Two points follow from this definition that matter for the maternity-leave question:
First, the surrogate mother’s role is defined by reference to the physiological process of pregnancy and childbirth carrying and delivering not by reference to genetic parentage or intended legal status. She experiences, in the ordinary case, the same physical confinement, the same risks of an abnormal delivery, and the same period of post-natal recovery as any other pregnant worker.
Second, Act 1027 draws a sharp legal distinction between the surrogate mother and the “intended parent.” The intended parent may apply to the High Court under section 22 of Act 1027 for a pre-birth or post-birth parental order naming her (or both her and the surrogate) as the child’s legal parent. Legal motherhood, in other words, can be reassigned by court order from the woman who gave birth to the woman who commissioned the birth. This is the central complication for the maternity-leave analysis, because Act 651 was drafted on the assumption that the woman who gives birth and the woman who is recognised in law as the mother are one and the same person.
2.3 The Concept of “Leave”
“Leave” in employment law refers to an authorised, temporary absence from work, granted under a contract of employment, a collective agreement, or statute, during which the employment relationship continues but the ordinary duty to attend work is suspended, usually with continued payment of remuneration or other statutory protection. Leave serves several overlapping purposes: it protects the worker’s health (sick leave), allows for rest and family time (annual leave), and in the case of maternity leave specifically protects the physical wellbeing of a woman who has been pregnant and has given birth, supports early infant care and bonding, and guards against the disadvantage that pregnancy and childbirth would otherwise cause in the labour market.
Act 651 recognises several categories of statutory leave, including annual leave (section 20), sick leave, and maternity leave (both dealt with together with annual and sick leave in section 57, under Part VI, “Employment of Women”). Maternity leave is properly understood as a composite right with at least two distinct justifications:
- a health and recovery justification, tied to the physical event of pregnancy and confinement, and
- a child-welfare/bonding justification, tied to the presence of a new-born who needs early care.
As will be seen, the tension between these two justifications is precisely what makes the surrogacy question difficult, because a surrogate mother experiences the first (the physical confinement) but, once she surrenders the child to the intended parents, does not typically experience the second (ongoing care of the new-born) in the same way as an ordinary mother.
3. Section 57 of Act 651: Textual Analysis
Section 57 of Act 651 provides, in substance, as follows:
- Subsection (1): A woman worker, on production of a medical certificate issued by a medical practitioner or midwife indicating the expected date of her confinement, is entitled to a period of maternity leave of at least twelve weeks, in addition to any period of annual leave to which she is entitled, after her period of confinement.
- Subsection (2): A woman worker on maternity leave is entitled to be paid her full remuneration and other benefits to which she is otherwise entitled.
- Subsection (3): The period of maternity leave may be extended by at least two additional weeks where the confinement is abnormal, or where two or more babies are born in the same confinement.
- Subsection (4): Where an illness certified by a medical practitioner is due to the pregnancy, the woman worker is entitled to additional leave as certified.
- Further subsections protect a pregnant or nursing worker from night work and hazardous assignment (read together with sections 55 and 56), and subsection (8) prohibits an employer from dismissing a woman worker because of her absence on maternity leave.
Three textual features are important for the surrogacy question.
First, the trigger for entitlement is confinement, not genetic or intended parentage. The statute asks only whether the worker is a “woman worker” who will undergo, or has undergone, confinement (childbirth), evidenced by a medical certificate. It does not ask whether the child conceived or born will remain in her legal custody, whether she is genetically related to the child, or what will happen to the child after birth. This is a deliberately narrow, physiological trigger.
Second, the leave is expressly linked to remuneration and to protection from dismissal, marking it as a health and status-protection measure for the worker herself, not merely a childcare entitlement contingent on the worker retaining custody of a child.
Third, section 57 sits within Part VI of the Act, “Employment of Women,” alongside sections 55 and 56, which protect pregnant women generally from night work, overtime, and hazardous or unsuitable assignment. The surrounding provisions confirm that the legislative concern animating this Part is the physical condition of pregnancy and childbirth as such, and the vulnerability that condition creates for a woman in employment not the social or legal status of motherhood that may follow from it.
At the same time, section 57 was self-evidently drafted without surrogacy in contemplation. The Act nowhere defines “confinement,” “woman worker,” or “maternity” in a way that either includes or excludes a surrogate. There is, to date, no reported Ghanaian case law interpreting section 57 in the surrogacy context, and no guideline from the Labour Department or the National Labour Commission addressing the point. The provision must therefore be interpreted, in the conventional manner, by reference to its ordinary words, its statutory context, and its evident purpose.
4. Ghana’s Surrogacy Framework: The Registration of Births and Deaths Act, 2020 (Act 1027)
Before 2020, Ghana had no legislation recognising surrogacy or any other assisted reproductive birth; parentage following a surrogacy arrangement was typically regularised, if at all, through the ordinary adoption process under the Children’s Act, 1998 (Act 560). Act 1027 changed this by making express statutory provision, under section 22, for surrogacy and other assisted reproductive births, principally for the purpose of determining and registering legal parentage.
Section 22(1) permits an intended parent to engage the services of a person to provide a child through surrogacy. Section 22(2) allows the intended parent, within twelve weeks of the embryo or gamete being introduced into the surrogate, to apply to the High Court for a pre-birth parental order naming the intended parent, the surrogate, or both, as the legal parent(s) of the child, provided the birth occurs within twenty-eight weeks of the order. Where no pre-birth order is obtained, the Act allows a post-birth application broadly comparable to an adoption application made between twenty-eight days and six months after the birth. Once a substitute parentage order is made, the District Registrar strikes out the original birth record and opens a new one naming the intended parent (or the intended parent and surrogate) as the legal parent, with the original record sealed until the child turns twenty-one.
What Act 1027 conspicuously does not do is regulate the employment consequences of surrogacy. It says nothing about whether a surrogate who is in paid employment is entitled to time off work for the pregnancy and birth, whether she is entitled to be paid during that time, or whether the intended (commissioning) mother who has not herself been pregnant is entitled to any form of statutory leave to receive and care for the child. Nor is there, as yet, any Assisted Reproductive Technologies legislation of general application in Ghana; a draft ART Bill has circulated since 2021 but has not been enacted, and commentators continue to describe Ghana’s ART and surrogacy regime as one of “statutory recognition without full regulation.” The result is that Act 1027 confers legal recognition and a parentage mechanism for surrogacy, while Act 651 the statute that actually governs workplace rights remains silent on the subject. The two statutes were plainly not drafted with each other in mind, and neither cross-refers to the other.
5. Applying Section 57 to Surrogate Mothers: Analysis
5.1 The Textual Argument for Inclusion
Read literally, section 57(1) applies to “a woman worker” who produces a medical certificate indicating “the expected date of her confinement.” A surrogate mother who is in paid employment, and who is pregnant, is a woman worker facing confinement in precisely this sense. Nothing in the wording requires that the child be hers to keep, that she be genetically related to the child, or that she intend to raise the child after birth. On a plain reading, therefore, a surrogate mother who satisfies the medical-certificate requirement falls squarely within the class of persons section 57(1) describes, whether her surrogacy is traditional (where she is genetically the mother) or gestational (where she is not).
This textual reading is reinforced by the surrounding provisions in Part VI. Sections 55 and 56 protect “pregnant women” from night work and hazardous or unsuitable duties without any qualification as to the woman’s intentions regarding the child; the protection attaches to the physical fact of pregnancy. It would be anomalous to read section 57 a provision addressing the aftermath of the very same physical condition as importing a qualification about intended custody that the neighbouring, closely related provisions do not contain.
5.2 The Purposive Argument for Inclusion
The health-and-recovery rationale underlying maternity leave applies with undiminished force to a surrogate mother. She undergoes the same hormonal changes, the same physical strain of pregnancy, the same risks of complications or abnormal delivery contemplated by section 57(3), and the same period of post-partum physical recovery as any other worker who has given birth. Denying her the leave or worse, treating her return to work as immediate upon delivery because she will not be raising the child would ignore the physiological reality that childbirth, regardless of what follows it, imposes recovery needs on the woman’s body. On this reasoning, the health-protective purpose of section 57 requires that a surrogate be treated no differently from any other worker who has just given birth.
The child-welfare/bonding rationale is admittedly less obviously served, since the surrogate will, in most arrangements, relinquish the child to the intended parents shortly after birth. But this does not defeat the case for leave; it only affects how long a post-natal period tied to bonding might sensibly extend for a surrogate, as distinct from the recovery-based core of the entitlement, which is unaffected by who ultimately raises the child.
5.3 The Threshold Difficulty: Employee Status
The more serious obstacle to a surrogate mother’s claim under section 57 is not the scope of “woman worker facing confinement,” but whether she is a “worker” under Act 651 at all in relation to the surrogacy itself. Section 57 protects a woman in her capacity as an employee of an employer, in respect of her ordinary employment. Many surrogates are not “employed” by the intended parents or by any fertility clinic in the sense contemplated by the Act; the surrogacy arrangement is typically a private, largely altruistic or fee-based agreement between the surrogate and the intended parents, governed by contract and, since 2020, by Act 1027 not a contract of employment as defined in section 175 of Act 651. Ghana’s ART practice appears, in any case, to permit only altruistic surrogacy, with compensation limited to medical expenses, which further weakens any argument that the surrogacy arrangement itself is a “contract of employment” attracting Act 651 protections directly from the intended parents.
The correct legal question, therefore, is not whether the surrogacy arrangement is employment, but whether the surrogate mother, in her separate and pre-existing capacity as an employee of some employer (a bank, a school, a factory, and so on), is entitled to maternity leave from that employer because she is pregnant and facing confinement as a surrogate. Framed this way, the employer is not a party to, and has no legal interest in, the surrogacy arrangement; the employer’s obligation under section 57 is triggered simply by the medical fact of the employee’s pregnancy and impending confinement, exactly as it would be for any other pregnant employee. On this framing, the employee’s motive for being pregnant, and the ultimate legal fate of the child, are irrelevant to the employer’s statutory duty.
5.4 The Position of the Intended (Commissioning) Mother
It is worth noting, for completeness and by way of contrast, that an intended mother who not herself has been pregnant has a much weaker claim to leave under section 57, because she cannot produce a medical certificate “indicating the expected date of her confinement” she has no confinement of her own. Her entitlement, if any, to leave to receive and care for a child born through surrogacy would have to come from a different source (for example, a form of adoption or parental leave), which Act 651 does not currently provide for at all. This confirms that section 57, as presently drafted, tracks the physical event of childbirth, wherever it occurs, rather than the legal status of motherhood, wherever it ultimately settles a structural feature that favours reading the surrogate, rather than the intended mother, into section 57.
5.5 Summary of the Analysis
On balance, a purposive and textual reading of section 57 supports the conclusion that a surrogate mother who is an employee is entitled to the same statutory maternity leave, on the same terms (twelve weeks, extendable for abnormal confinement or multiple births, with full remuneration and protection from dismissal), as any other pregnant worker provided the entitlement is claimed against her own employer in the ordinary employment relationship, and not against the intended parents, who bear no obligations under Act 651. The absence of any express exclusion of surrogates from section 57, combined with the health-protective purpose of the provision and its consistent focus on the physiological fact of confinement, weighs in favour of inclusion. The principal legal uncertainty is not, therefore, whether surrogates are covered in principle, but the practical and evidentiary question of how an employer verifies “confinement” and how the twelve-week period should be administered where the worker will not retain custody of the child matters section 57 does not address and which invite legislative clarification.
6. Comparative Note
Jurisdictions that regulate surrogacy more comprehensively than Ghana generally address this question expressly, rather than leaving it to inference from a general maternity-leave provision. The United Kingdom, for example, gives a surrogate the ordinary statutory maternity leave and pay to which any pregnant employee is entitled, while giving the intended parents a separate entitlement to “adoption leave” once a parental order is made. India’s surrogacy-specific legislation likewise addresses the surrogate’s health and recovery needs directly, rather than through the general maternity-leave statute alone. These comparators illustrate a workable model: general maternity leave for the woman who is pregnant and gives birth, and a distinct, purpose-built leave category for intended parents who assume legal parenthood without having been pregnant themselves. Ghana currently has neither an explicit rule for the surrogate under Act 651 nor any parental-leave equivalent for intended parents under Act 1027.
7. Conclusion and Recommendations
Section 57 of Act 651, properly construed, is capable of extending to a surrogate mother who is a “woman worker” and who satisfies its medical-certification requirement, because the provision is triggered by the physical fact of confinement rather than by genetic or intended legal parentage of the child. This conclusion follows from the ordinary words of the provision, its place within a Part of the Act devoted to protecting the physical condition of pregnant women generally, and the underlying health-protective purpose of maternity leave. The principal qualification is that the entitlement must be claimed in the surrogate’s ordinary capacity as an employee against her actual employer; it does not create any obligation running from the intended parents, who are not her employer, and it does not, without further legislative intervention, extend an equivalent leave to an intended mother who has not herself been pregnant.
Because this conclusion rests on inference and statutory purpose rather than express words, and because there is no Ghanaian case law or administrative guidance directly on point, the position remains legally uncertain in practice. It is recommended that:
- Parliament amend Act 651, or issue implementing regulations under it, to state expressly that a “woman worker” for the purposes of section 57 includes a surrogate mother, irrespective of the ultimate legal parentage of the child;
- The long-pending Assisted Reproductive Technologies Bill be revisited and harmonised with Act 651, so that the employment consequences of surrogacy are addressed alongside its registration and parentage consequences already found in Act 1027; and
- Consideration be given, as in comparative practice, to creating a distinct parental or adoption-type leave under Act 651 for intended parents following a substitute parentage order under Act 1027, so that the child-welfare purpose of family leave is not left unserved simply because the person who will raise the child was not the person who carried the pregnancy.
Until such reform occurs, employers, surrogates, and intended parents in Ghana must navigate the maternity-leave question with reference to the general purposive reading defended in this paper, rather than to any settled or expressly stated rule.
By
Yvonne Naadu Ayin, Nana Serwaa Bonsu Frimpong, Christopher Brempong, Cynthia Akua Twumwaa Budu and Abdul-Latif Alhassan
REFERENCES
- Labour Act, 2003 (Act 651), ss 55–57.
- Registration of Births and Deaths Act, 2020 (Act 1027), ss 22, 48.
- Children’s Act, 1998 (Act 560).
- Constitution of the Republic of Ghana, 1992, arts 15(1), 28(1)(a).
- Assisted Reproductive Technologies Bill, 2021 (draft, not yet enacted).
- Koranteng & Koranteng Legal Advisors, “Conception to Lawful Perfection: The Need for Effective Legislation in Assisted Reproductive Technologies in Ghana” (2023).
- B&P Associates, “A New Path for Surrogacy in Ghana: What You Need to Know.”
- MyJoyOnline, “Surrogacy in Ghana: Legal Parenthood, Registration, and the Rights of the Surrogate” (2026).
- Ghana Law Hub, “Wombs for Rent: The Ethics of Commercial Surrogacy” (2025).
