Surrogacy: Supreme Court judge warns of citizenship and inheritance challenges for children born in Ghana

Supreme Court Justice Dennis Dominic Adjei has warned that surrogacy could create complex legal disputes in Ghana over the citizenship, parentage and inheritance rights of children born through assisted reproductive technology.

He illustrated the challenge with a scenario involving a child born in Accra who could have four different maternal figures: a genetic mother, a gestational mother, an intended mother and a customary mother.

“What happens when a child is born this morning in Accra with four mothers? A genetic mother, a gestational mother, an intended mother, and a customary mother?” he asked, describing the situation as an “after-birth legal conundrum” confronting the country.

Justice Adjei raised the concerns while delivering a keynote address at a meeting of the International Association of Women Judges (IAWJ), Ghana Chapter, in Accra.

The meeting was held under the theme, “The After-Birth Legal Conundrum: Citizenship, Succession, and Legal Implications of Surrogate Birth in Ghana.”

The Supreme Court judge, who also serves as a Justice of the African Court on Human and Peoples’ Rights, presented several scenarios to demonstrate the gaps that could emerge when existing laws are applied to children born through surrogacy.

One scenario involved a Ghanaian intended mother using a donor egg and donor sperm, with a Ghanaian woman carrying the pregnancy. Another concerned foreign intended parents engaging a Ghanaian gestational surrogate.

Justice Adjei said such arrangements raised difficult questions about which parent determines a child’s citizenship, particularly when the genetic, gestational and intended parents are different people.

“If no parental order names foreign parents as legal parents, Act 1027 directs registration of the birth mother. If an order names foreigners, neither legal parent may be Ghanaian, yet Ghana does not operate a general jus soli rule.

“Does citizenship follow genetics, gestation, or intention? Act 1027 does not expressly tell us for citizenship purposes. That is not an academic defect. It may determine whether a child has a passport,” Sir Justice Dominic Adjei stated, delivering a keynote address at the International Association of Women Judges (IAWJ)—Ghana Chapter meeting in Accra.

He referred to Article 6(2) of the 1992 Constitution and Section 7 of the Citizenship Act, 2000, explaining that Ghanaian citizenship is linked to parentage or grandparentage rather than simply the place where a person is born.

According to him, surrogacy complicates the application of these provisions because a child’s genetic parent may not have a recognised legal relationship with the child, particularly where donor identities are unknown.

“surrogacy severs that link. Where the donor is anonymous, genetics may exist without a legal relationship, creating a status problem—parent in one jurisdiction, non-parent in another, and potential statelessness prohibited by Article 6 of the African Charter on the Rights and Welfare of the Child.”

Beyond citizenship, Justice Adjei identified succession as another major area of concern, arguing that inheritance disputes could arise from the interaction of statutory law, constitutional provisions and customary law under Article 11 of the 1992 Constitution.

He questioned whether a child born through surrogacy would automatically become part of an intended mother’s customary family or lineage, particularly where the child has no genetic connection to her.

“If an Akan intended mother becomes legal mother through a parental order for a child with no genetic link to her, does the child enter her matrilineal ‘abusua’ for every customary purpose?

“If her extended family contends the child is legally her child but not a member of our lineage, that litigation is foreseeable.”

The judge also raised questions about whether a child conceived through a donor egg could inherit from the egg donor, and whether an anonymous sperm donor’s genetic contribution could create maintenance obligations or inheritance rights.

He noted that Article 28(1)(b) of the Constitution guarantees every child reasonable provision from the estate of their parents, but argued that assisted reproductive technology raises questions about who qualifies as a child’s “natural parents” under the law.

“Technology asks customary law a question it was never historically required to answer: Can legal intention create lineage? Ghana needs legislation to state whether a parental order creates parent-child status for all purposes of Ghanaian law, including intestate and testamentary succession, and its effect upon customary lineage,” Justice Adjei said.

Meanwhile, the President of the IAWJ Ghana Chapter, Justice Rita Agyeman-Budu, said the association was established in 2010 as part of a global network of women judges.

“Our vision is increasing the number of women judges and promoting equal justice for women and girls throughout Ghana,” Justice Agyeman-Budu stated.

She said discrimination against women and girls remained widespread across societies, whether through discriminatory laws or the biased application of existing legal provisions.

“As such, judicial systems fall short of ensuring women’s equal access to justice. A vital remedy, embraced by the IAWJ, is to promote and empower women judges who can help uproot gender bias, end discriminatory laws, advance gender-responsive courts, and promote human rights for all, Justice Agyeman-Budu.