SURROGACY IN GHANA
Surrogacy Arrangements in Ghana and the Significance of Pre-Birth Orders.
What is the definition of surrogacy? Surrogacy refers to an agreement in which a surrogate mother carries and gives birth to an embryo formed from the egg and sperm of individuals other than the surrogate and her partner or husband. It can also involve the introduction of gametes from individuals other than the surrogate’s partner or husband to fertilize the surrogate’s egg.
A surrogate mother is a woman who, under a surrogacy agreement, agrees to carry the fetus of another woman and give birth to a baby on behalf of the intended parent or parents. An intended parent is an individual who wishes to become a parent through surrogacy or any other form of assisted reproductive health arrangement.
Many women face reproductive health challenges that make it difficult for them to conceive without assistance. Some couples may have viable sperm, eggs, and a uterus but still struggle to conceive. Surgical procedures, artificial insemination, and various forms of in vitro fertilization often help them overcome their infertility and successfully have a child.
Prior to the implementation of the Registration of Births and Deaths Act in 2020 (Act 1027), assisted reproductive birth methods like surrogacy had no legal sanction in Ghana. However, with the adoption of Act 1027, surrogacy is now an established legal option in Ghana, permitting people to seek the aid of a surrogate to assist with childbirth.
Before the Registration of Births and Deaths Act, 2020 (Act 1027) was passed, the Ghanaian legal system didn’t acknowledge or authorize surrogacy or any other methods of assisted reproductive birth. With the enforcement of Act 1027, surrogacy is now officially recognized in Ghana, allowing individuals to legally engage another person to assist with childbirth through surrogacy.
What does the term “Pre-Birth Parental Order” refer to?
A pre-birth parental order is a legal document that establishes a person’s status as a child’s legal parent before the child is born. In surrogacy arrangements, both the intended parents and the surrogate have a presumption of establishing parentage to the child. The intended parent is presumed to be the child’s genetic mother, while the surrogate is presumed to be the child’s birth mother. Both the surrogate and the intended parents have competing claims to establish parentage.
However, without a pre-birth parental order, the surrogate is presumed to be the biological and legal mother of the child, and her name may appear on the child’s medical records and birth certificate. A pre-birth parental order overcomes these presumptions and provides the hospital with a court directive stating that the woman giving birth is a surrogate and not biologically related to the child.
What are the advantages of a Pre-Birth Parental Order? A pre-birth parental order offers significant benefits to all parties involved in the arrangement, including the intended parents, the surrogate, and even the medical facility. Some of the benefits include:
- The pre-birth parental order establishes the intended parents as the child’s legal parents before the child’s birth, granting them immediate and sole access to and control over the child’s postnatal care and medical treatment.
- It allows the names of the intended parents to be listed on the original birth records at the hospital and relevant health and birth departments, eliminating the need for additional paperwork and expenses to amend the child’s birth certificate after birth.
- Determining parentage before birth enables the hospital to directly discharge the child to the intended parents, avoiding the awkward situation of the surrogate handing over the child to the intended parents after leaving the hospital.
- A pre-birth parental order allows the intended parents to emotionally and psychologically participate in the delivery and hospital experience, making the experience as close to the natural delivery of their own child as possible.
- It protects the surrogate from unintended parental responsibilities.
- It grants the intended parents the authority to make immediate medical decisions for the child.
How does one go about acquiring a Pre-Birth Parental Order?
The process of obtaining a pre-birth parental order in Ghana is now regulated by statute. The intended parent can apply to the High Court within 12 weeks after introducing a gamete or embryo into the surrogate. If the birth occurs within 28 weeks of the High Court order, the pre-birth order allows either the intended parent or surrogate mother, or both parents, to be named as the child’s legal parent.
The Court may issue a pre-birth parental order if it finds evidence of parentage and the existence of a surrogacy arrangement. The order will name the legal parent of the unborn child, and copies will be issued to the District Registrar of Births and Deaths, the intended parent, the surrogate mother, and the hospital if the birth takes place there.
Without a pre-birth order from the Court naming another person as the mother, the surrogate will be registered as the mother of the child. The surrogate has the right to register the child and provide all necessary particulars for registration, including the child’s name and the name of the child’s father.
If a pre-birth order is issued and served on the District Registrar or the hospital, the birth arising from the surrogacy will be registered in accordance with the pre-birth parental order and the provided name of the child. This new birth record supersedes any earlier birth record.
What is the outcome when a surrogate delivers a baby without a Pre-Birth Order?
If a pre-birth order naming another person as the child’s parent is not obtained before the child is born, the surrogate will be registered as the mother of the child, even if a surrogacy agreement exists between the surrogate and the intended parent.
However, either the surrogate or the intended parent can apply to the High Court for a post-birth parental order or substitute parentage order. A post-birth parental order is an order from the Court naming a person as a legal parent of a child who is already born. A substitute parentage order is an order from the Court naming a person as a legal parent of a child born to another person who, until the Court’s determination, may have been recognized as the parent of that child. Providing evidence of a genetic relationship to the child may be required to obtain such an order.
When the Court issues a post-birth parental order or substitute parentage order naming the intended parent or surrogate as the child’s legal parent, a copy of the order must be promptly served on the District Registrar of Births and Deaths.
A post-birth parental order or substitute parentage order operates in a similar manner to an adoption proceeding. The application must be submitted to the High Court within 28 days of the child’s birth but no later than 6 months after the birth.
Upon receiving a sealed substitute parentage order from the Court, the District Registrar will replace the original birth record with a new one, naming the intended parent or surrogate as the child’s parent in accordance with the substitute parentage order. The original birth record will be kept confidential and made available to the child only when they reach the age of 21.
A pre-birth parentage order is a legal mechanism that provides intended parents with certainty, assurance, and control over their unborn child. It also helps prevent post-birth issues related to parentage and other challenges discussed in this article. Although post-birth parentage or substitute parentage orders can be pursued if a pre-birth order is not obtained, the stress, costs, and paperwork involved in amending early child health and birth records make the pre-birth process preferable for establishing parentage.