Can I opt for surrogacy in Ghana?
Dear Mirror Lawyer, My husband and I have been trying to have a child of our own for the past decade.
Recently, I read an article my friend sent me on surrogacy and the possibility of having a child through a surrogate.
I am excited about the prospect of having my biological child after years of barrenness, but also confronted with the issues involved in this, if we should do it the right way.
Please can you educate me on surrogacy in Ghana and the ways I can go about things legally?
Valerie Amo-Quayson, East Legon.
Dear Valerie, Surrogacy is a legal and medical arrangement whereby a woman (the surrogate) gets pregnant and gives birth on behalf of another person or couple who will become the child's legal parents after birth.
People pursue surrogacy for a variety of reasons, such as infertility, dangers or undesirable factors of pregnancy or when pregnancy is a medical impossibility.
The person giving birth is the gestational carrier, sometimes referred to as the birth mother, surrogate mother or surrogate. Those taking custody are called the commissioning or intended parents.
There are two main types of surrogacies. The most common type is Gestational Surrogacy, where the surrogate has no genetic connection to the baby.
An embryo is created via In Vitro Fertilisation (IVF) using the intended parents' (or donors') egg and sperm, then implanted into the surrogate.
The second type is Traditional Surrogacy. Here, the surrogate’s own egg is artificially inseminated using the intended father’s or a donor's sperm. In this case, the surrogate is the biological mother of the child.
Surrogacy in Ghana is governed by Section 22 of the Births and Deaths Act, 2020 (Act 1027), which allows intended parents to engage a surrogate to carry a child.
Intended parents can apply to the High Court for a pre-birth parental order within 12 weeks of introducing an embryo or gamete into the surrogate mother.
This order establishes legal parentage if the child is born within 28 weeks of the order. If no pre-birth parental order is issued, the surrogate mother is considered the legal parent.
For children already born, intended parents or surrogates may apply for a post-birth parental or substitute parentage order, which functions similarly to an adoption process. This application must be lodged within 28 days, but not later than six months, after the child's birth.
Although Ghana lacks a detailed legal framework for surrogacy agreements, such agreements are treated as contracts and must meet the requirements of a valid contract under the Common Law, as amended by the Contracts Act, 1960 (Act 25).
I recommend consulting your healthcare provider and engaging a lawyer to assist with drafting and formalising the agreement, given the sensitive and complex nature of surrogacy arrangements.
