Ghana needs comprehensive surrogacy law to address complex legal disputes — African Court Judge

African Court on Human and Peoples’ Rights judge Sir Justice Dennis Dominic Adjei has urged Ghana to enact a comprehensive Assisted Reproductive Technology (ART) and Surrogacy Act, warning that courts may be compelled to develop legal principles through their judgments if Parliament fails to address existing gaps.

He outlined 12 key areas that a proposed law should cover, including parental consent, citizenship, succession, compensation, legal parentage and the handling of complex cases involving disability, multiple births, divorce and the death of intended parents.

Speaking at a meeting of the International Association of Women Judges (IAWJ), Ghana Chapter, in Accra, Justice Adjei cautioned that difficult disputes arising from surrogacy could emerge before lawmakers establish a complete regulatory framework.

The meeting was held under the theme "The after-birth legal conundrum: citizenship, succession and legal implication of surrogate birth in Ghana.”

He cited possible situations in which a surrogate mother changes her mind, intended parents die during pregnancy, couples divorce, a disability is discovered at 20 weeks, triplets are born unexpectedly, or intended parents refuse to accept a child born with a substantial disability.

According to him, such situations require clear legal answers to protect the rights of children, surrogates and intended parents.

Justice Adjei, who is also a judge of the Supreme Court of Ghana, said it was no longer accurate to describe surrogacy in the country as entirely unregulated because Sections 22 and 48 of the Registration of Births and Deaths Act, 2020 (Act 1027), expressly recognise surrogacy.

However, he argued that the existence of statutory provisions did not mean Ghana had established a comprehensive surrogacy regime.

Twelve areas for legislative action

Justice Adjei proposed that a new law establish a regulatory authority responsible for overseeing fertility clinics and agencies involved in assisted reproductive procedures.

He said the legislation should also define eligibility requirements for people seeking surrogacy services, including age, legal capacity, health screening and previous pregnancy history.

On consent, he called for requirements covering informed decision-making, medical justification, counselling and independent legal advice to ensure all parties understand their rights and responsibilities.

The proposed law, he said, must also clarify Ghana's position on compensation, including whether compensated surrogacy should be permitted, restricted to reasonable expenses or limited to an altruistic arrangement.

Justice Adjei further called for clear rules governing surrogacy contracts, particularly the distinction between enforceable financial commitments and provisions that attempt to control a woman's body, decisions on pregnancy termination or selective reduction.

He said the legislation should establish when legal parentage takes effect, whether through birth, a court order or another clearly defined legal event. It should also address the circumstances under which consent may be withdrawn.

On gamete and embryo donation, he proposed that the law clarify that providing reproductive material alone does not confer legal parenthood. However, a donor register should preserve relevant medical and identifying information to help children establish their genetic identity.

Other areas he identified were citizenship, succession and customary membership, as well as provisions for difficult situations involving multiple births, disability, miscarriage, stillbirth, death, divorce and abandonment.

He also urged lawmakers to address international surrogacy arrangements by defining jurisdiction, applicable law and the recognition of foreign judgments.

Citing disruptions caused by the war in Ukraine, Justice Adjei referred to cases in which dozens of newborns were stranded in hospital basements following consular shutdowns, underscoring the risks associated with cross-border surrogacy.

He said the law should additionally require the preservation of children's birth histories, genetic information and records of legal parentage.

Ghana must complete its existing legal framework

Explaining Ghana's current legal position, Justice Adjei said the law permits an intended parent to engage another woman to carry a pregnancy.

He noted that an application for a pre-birth parental order may be made to the High Court within 12 weeks after the introduction of an embryo or gamete. A post-birth substitute parentage order may be lodged no earlier than 28 days and no later than six months after birth.

He argued that these provisions provide a foundation on which a more comprehensive legal framework can be built.

"Ghana remarkably already possesses what the traditional British model lacks: a statutory route to a pre-birth parental order. Our challenge is not simply to copy Britain. It is to complete the legal architecture around a mechanism Ghana has already chosen," the African Court judge stated.

He also warned against treating parenthood as a contractual arrangement in which intended parents could reject a child because the child did not meet their expectations.

"Ordinary parenthood does not operate on a warranty of satisfactory characteristics. A legal regime that permits intention to create parenthood must confront the correlative proposition that intention may also create responsibility. It cannot permit parenthood to operate like an option over goods," Sir Justice Dominic Adjei said.

Lessons from other jurisdictions

Justice Adjei highlighted different approaches to surrogacy around the world, arguing that Ghana could learn from the strengths and limitations of existing legal systems.

He said South Africa requires judicial confirmation before fertilisation and restricts compensation, while the United Kingdom recognises the surrogate as the legal mother at birth and treats surrogacy agreements as unenforceable.

Canada, he noted, prohibits payment for surrogacy, while India restricts the practice to altruistic arrangements.

He also cited California's detailed contractual model, the criminal prohibitions on commercial surrogacy in Italy and Germany, and Ukraine's previous allowance for regulated commercial surrogacy involving married heterosexual couples.

The comparisons, he suggested, demonstrated the need for Ghana to establish a framework suited to its own legal and social circumstances.

Religious perspectives on surrogacy

Justice Adjei also discussed religious perspectives, noting that the Roman Catholic Church prohibits all forms of surrogacy under Donum Vitae, Dignitas Personae and Dignitas Infinita, on grounds relating to the dignity of the child and the integrity of marriage.

He said the overwhelming majority of Islamic jurists, including those associated with the International Islamic Fiqh Academy, consider surrogacy prohibited because of concerns about confusion over lineage, or nasab.

Protestant and Jewish traditions, he added, vary, with some liberal denominations permitting altruistic surrogacy.

Concluding his address, Justice Adjei stressed that the legal consequences of surrogacy extend well beyond the birth of a child, particularly where questions of identity, nationality, inheritance and parentage remain unresolved.

"The reproductive laboratory has separated concepts which law once assumed nature would keep together. The child did not choose the donor or the surrogate or negotiate the compensation.

“Yet it is the child who may one day have to prove the parent, the nationality, the family, the inheritance and the identity. That is why your legal enquiry cannot end at childbirth. The law must answer not merely how a child may be born through surrogacy, but who that child is in the eyes of the law after birth," Sir Justice Dominic Adjei stated.

IAWJ Ghana Chapter raises concerns about discrimination

President of the IAWJ Ghana Chapter, Her Ladyship Justice (Mrs) Rita Agyeman-Budu, expressed concern about the continued discrimination faced by women and girls across societies.

She said discrimination persisted through both discriminatory laws and the biased application of existing legal provisions, undermining women's equal access to justice.

“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.

The IAWJ is a global association of women judges established in 2010. Its vision includes increasing the number of women judges and promoting equal justice for women and girls throughout Ghana.