Legal scholars and practitioners in the area of medical law in Ghana find it curious why there exists a difficult legal regime to comprehensively regulate all matters on Assisted Reproductive Technologies (ART) in Ghana, which includes surrogacy.
The writer is an emerging authority in medical law in Ghana with varying interests in medico-legal cases, speaker and facilitator at a number of medico-legal seminars under his sleeves as well as proffered medico-legal opinions to hospitals in Ghana and by experience, find it problematic that Ghana has nearly non-existent comprehensive laws to fully regulate ART, an important area of medical law.
Family is central to Ghana’s culture. The Ghanaian families are often extended in nature. The family system is characterized such that the family unit is highly socialized with well-placed gender roles and at large, the family unit has a strong sense of community and the actions and inactions of family members impact the community.
At the heart of this social structure is procreation and the need to maintain the family bloodline. Child birth therefore plays an important role in this social fibre as it draws marital stability, community affirmation, wealth and assured lineage. Noteworthy, is that a family unit having infertility issues faces psychological and socio – cultural challenges.
According to Hiachi, Woodward and Akrong[1], it is estimated that about 8% to 12% of couples in their reproductive years are infertile which when translated world-wide is 50 – 80 million people globally. Furthermore, Hiachi et al, further indicated that the World Health Organization projected that 48.5 million individuals world-wide experience infertility. Narrowly, Ghana according to the expert authors, Hiachi et al, points out that Ghana’s population has an infertility rate of 15% and further says that, most infertility cases are caused by untreated reproductive tract infections such as post-partum infection, post abortion infections and sexually transmitted infections.
ART is an expensive medical service and only few can subscribe to it as rendered by facilities. This makes the service more available to the middle to upper class of the society, thereby leaving largely the lower class out of service reach. In addition to this is complicated by the absence of a comprehensive legal framework which has unfortunately allowed this ever emerging medical industry to be fraught with incongruous or different kinds of ART Service thereby putting the health of patrons at risk. This is unacceptable and Ghana cannot proceed like this as this runs contrary to Article 30 of the 1992 Constitution on Health Facilities that render ART are not compulsorily registered even though there is an Association in the name of Fertility Society of Ghana and this society is not sanctioned under laws as compared to UK which has a governing Authority called The Human Fertility and Embryology Authority and same issues licences to facilities as well as hands-on regulation.
In the United Kingdom, particularly England and Wales, ART including surrogacy is comprehensively governed by the Surrogacy Arrangement Act 1985 as amended by the Human Fertilization and Embryology Act 1990 and the Human Fertilization and Embryology Act 2008. Furthermore, in Australia, there exist comprehensive legal framework which is traceable to the Parentage Act 2004. The writer shall later engage in a comparative discussion of the laws as cited. According to section 48[2], surrogacy is where a gamete from other than the partner or mother is used to fertilize the egg of that surrogate mother.
2.0. According to Geelhoed, D, et al per their published article in the International Journal of Gynecology and Obstetrics, 2002 [3] estimated that about 11.8% of women and 15% of men are affected with the burden of infertility in Ghana. As a result of the foregoing, many Ghanaian families faced with infertility problems are turning to ART treatments to become parents.
Surrogacy is a type of ART and this forms the focus of the article while the writer explores the discussion on the need for Ghana to have a comprehensive legal framework as in other jurisdictions.
3.0. Types of surrogacy.
Surrogacy is divided into two main types namely, traditional and gestational surrogacy. There are other types of surrogacies, which are: Agency Surrogacy; Donor Sperm Surrogacy; Compensated Surrogacy, etc. The writer will focus on the two main types as mentioned above.
3.1. Gestational Surrogacy
This is where the egg or ova and sperm are drawn from the intended parent or the donor and fertilized into an embryo. The embryo is then implemented into the womb of the surrogate mother for term. Here, the surrogate mother is not the biological mother of the child born.
3.2. Traditional Surrogacy
This is where the surrogate mother’s egg is used to create an embryo after fertilization and transferred into the womb of the surrogate mother. This makes the surrogate mother the biological mother of the born child. Given this special relationship between the surrogate mother, it complicates the legal relationship, hence the need for the regulation of the space even though Act 1027 is in place.
With surrogacy comes compensation but this is strictly regulated by law in most jurisdictions including the U.S.A, UK and Australia per the various laws mentioned in this article. In these countries, Altruistic surrogacy which refers to surrogacy where there are no charges, expenses, fees or monetary incentive of whatever nature except the medical expenses incurred on the surrogate mother. Insurance coverage is usually provided for the mother as well, including her dependants where necessary[4].
In the above countries, there is prohibition of commercial purpose but there are exceptions under strict legal regulation. This legal cover is absent in Ghana and the industry actors (IPs, surrogate mothers, fertility centre and negotiating third parties(Surrogacy Agencies or Companies) are at liberty with what they do however ethical or not. The following remains serious legal questions posed on ethical issues:
- How much will the embryo be sold?
- Is the fertility centre engage in order based on traits?
- If so, is the fertility centre involved in trait selection to promote eugenics?
- If so, how can such unethical practices be curbed to prevent inequality and injustice?
- In terms of commodification, should the price of embryos be different from embryo with selected trants?
- What happens if the fertility centre hosting the embryos go insolvent whether voluntary or not?
- Where does the ownership of the embryos lie?
- Should the number of embryos from a given sperm and egg donor be limited?
- If so, what should the maximum be?
- Otherwise, this could pose harm to subsequent generations.
- Do the right of offspring to know their parents outweigh the rights of donors to remain anonymous?
- Can the offspring contact the biological mother?
- Are surrogate contracts enforceable in Ghana?
- Ca Intended Parents advertise for surrogate mothers?
- Can potential surrogate mothers advertise?
- Can potential surrogate mothers and intended parents arrange or negotiate a surrogacy arrangement as a commercial enterprise?
- Is there a legal entity of Human Fertilization and Embryology Authority in place in Ghana to regulate the space?
- What is the nature of the licensing regime for fertility centres involved in ART in Ghana?
4.0. Assisted Reproductive Technology in brief.
According to Centre for Disease Control and Prevention of the United States of America and based on the 1992 Fertility Clinic Success Rate and Certification Act which requires the Centre to carry on with annual publication of ART, its Success Rates Reports defined ART to include all fertility treatments in which either eggs or embryos are handled. The Centre further espouses that ART involves surgically removing eggs from a woman’s ovaries, combining them with sperm in the laboratory, and returning them to the woman’s body or donating them to another woman’s[5]. In Ghana, the Registration of Births and Deaths Act, 2020 ACT 1027 per section 48, defines assisted reproductive birth to mean the use of modern technology advancement including fertility medication, artificial insemination and in vitro fertilization to cause reproduction and childbirth other than by orthodox means.
4.1. Types of ART in brief but not limited to:
There exists many types of ART but the underlisted includes the main types thereof and or popular in Ghana:
4.1.1. In Vitro Fertilization (IVF)
This is a process where the specialist extracts an egg from the woman and sperm from the man of which the specialist fertilizes them in a laboratory[6] and then transfers the embryo (IVF – ET) into the womb or uterus. According to Hiadzi, Woodward and Akrong, 2023 per their research published in the journal of the National Library of Medicine, National Centre for Biotechnology Information titled “Ethical issues surrounding the use of assisted reproductive technologies in Ghana: An analysis of the experiences of clients and service providers indicated that ART has been with Ghana about for three decades ago and that IVF and Intra – Cytoplasmic Sperm Injection (ICSI) by far have been popular.
4.1.2. Intrafallopian transfer
This is where the specialist uses a special tool called the laparoscope through a surgical procedure to deliver the gametes (that is sperm of the male and egg cells or ova of the female) directly into the fallopian tube of the female. This procedure is opted for by patient(s) based on their religious beliefs. I will touch on this in my later submission when making a case for a comprehensive ART law in Ghana. Insurance policy may also direct a client to opt for this type of ART[7]. It is recognized to be high risk since the fallopian tube risks being punctured, side effects from anesthesia or anesthesia error or injection. It must be noted that where any of these come up as a result of recklessness or negligence of the specialist, it could be a possible medical negligence suit.
- Frozen Embryo Transfer (FET).
This type of ART is where there is thawing or defrosting of previously IVF frozen embryos and the specialist inserts them into the woman’s uterus.
According to a publication by Medical News Today titled “What to know about assisted reproductive technology” 2021 and by a 2017 study showed that 52% of people who had FET had on-going pregnancies[8] and it is a common type of ART. The estimated cost at a maximum value of $6,000.
5.0. The current position of Assisted Reproductive Technology in Ghana?
The Parliament of Ghana promulgated the Registration of Births and Deaths Act, 2020 ACT 1027 with particular reference to section 22 to address only births and related matters arising out of ART. The writer holds the humble opinion that this law only deals with procedural matters involving the fixing of rights to Intended Parents (IPs) and or the Surrogate Mother whereas the law leaves a big void on the regulation of the industry on licensures, prohibitions, criminalisation on certain acts and the corresponding consequence; medical compliance to derived standards among others. The writer will discuss this section and conclude whether or not this exhaustive or more needs to be done in this area of medical law by the Parliament of Ghana and the Attorney General. It is important to point out here that surrogacy is a type of ART for the avoidance of doubt and under which the noted types of ART plays into.
“22. (1) An intended parent may engage the services of a person to give the intended parent a child through surrogacy.
(2) The intended parent may, within twelve weeks after introducing the embryo or gamete into the surrogate mother, apply to the High Court for a pre-birth order to allow
(a) either the intended parent or surrogate mother, or
(b) both parents of a child,
to be named as the parent of a child born through surrogacy or any other assisted reproductive birth if the birth occurs within twenty-eight weeks of the order of the High Court.
From the above quote, it is imperative to note that the law defines intended parents as a person who desires to be a parent through surrogacy or other assisted reproductive birth arrangement[9]. Furthermore, the Act under-reference defines surrogacy as any arrangement where an embryo formed from an egg and sperm of persons other than a surrogate mother and the partner or husband of the surrogate mother is implanted into the surrogate mother, or husband of a surrogate mother is introduced into the surrogate mother to fertilize the egg of that surrogate mother[10] to enable the surrogate mother carry the fetus for the period of the pregnancy and give birth at the end of the period on behalf of another woman or the intended parent.
For the avoidance of doubt, a surrogate mother under the Act[11] is a woman who has accepted under surrogacy arrangement to carry a fetus for the period of the pregnancy and give birth to a baby at the end of the period on behalf of another woman or the intended parent. At this juncture and with the foundation laid, gears us on to discuss the above quote. The section provides that an intended parent could engage the services of a person to become a surrogate mother for an intended parent. The position of the law is clear but this leaves room for other legal entities to operate whereas these artificial entities are not regulated in the space such as Surrogacy Companies exist under strict regulations. These entities create a community of surrogates for an intended parent to subscribe from by advertisement. Ghana has no laws to regulate traditional or gestational surrogacy.
The point is there is the need for laws to regulate these legal processes? Can an intended person from a surrogate company just walk in to select a surrogate mother in exchange for a financial reward simpliciter when the law does not even exist to specify what reasonable expenses are payable to the surrogate mother? What standardized support must be arrogated to the surrogate mother throughout the pregnancy? What age limit must a surrogate qualify for surrogacy? In most States in the United States of America, the surrogate must be over 21 years and must have had a child before and must go through the physical and mental health screening. Furthermore, there is no law to regulate the surrogate mother’s financial provision which will cover appointments, procedures, monthly allowance or stipends for clothing and other needs, in situation of death or disability, whether permanent or temporal just as the Workmen’s Compensation Law,1987 (P.N.D.C.L) 187 specifies the degree of injury in ratio to a compensation regime for a woman who got injured in the course of work.
What happens when young ladies below 18 years are lured into such surrogacy transactions? What sanction regime would meet the intended parent, or the recruiting surrogacy company or a third party including the fertility centre and or culpable persons who rope young women into this for personal gains albeit financial. Thus, the contract irrespective of its terms must conform to the basic requirements of state law, so that the right protection of the main actors in the surrogacy contract are upheld being the intended Parent, the Surrogate and the Baby. The writer will later discuss Surrogacy Contract and it’s enforceability in another part of the article. It is more dangerous to have an unregulated contract regime and or for intended parent or the surrogate mother to download such contract online for use without legal expert guiding the process under regulated laws as it can lead to extreme legal consequences as protection for the parties may be vitiated or limited by terms.
Having opined by the above, it is instructive to point out that the said section 22 of Act 1027 encourages an intended parent to contact the services of a person for surrogacy. The law further provides that given the types of ART as discussed but not limited to, when the fertilization is done and the embryo is introduced into the surrogate mother, the law informs the intended parent(s) (IP(s)) to apply to the High Court for a pre-birth parental order within 12 weeks of introduction of the embryo. The order ascribes parental rights to the IP(s) or the surrogate mother or both parents of the child. Where this application is not made, it could be brought 28 weeks after birth for the same purpose. The parental rights are very important as this ensures a smooth legal transition from the surrogate mother to the IPs or an order to bestow some form of parental right to the surrogate mother.
It must be stated that, where the Court is satisfied with the application which is usually in an originating motion form, the Court upon grant of same shall issue a Pre-birth Parental Order with the named legal parent of the unborn child and the registrar of the Court shall furnish the District Registrar of Births and Deaths; the IP, surrogate mother and the hospital where the child will be born or is born. The district registrar upon receipt of the certified true copy of the pre-birth parental order shall proceed to register the child in accordance with law.
It must be emphasized that when the child is born through ART and it is factual that the no pre-birth parental order was procured, the IP’s shall apply to the High Court for Post-birth Parental Order and a copy served on the District Registrar. Worthy of note is that, a post-birth parental order substantively takes the legal form of adoption proceedings. This is because, the child was born before the application for the parental order was made to ascribe legal parentage or the child was born post the order. As said earlier, this application must be brought within 28 days after birth and or not more than 6 months after the birth of the child. Upon the grant of the post-birth parental order, and service of same shall be effected on the District Registrar and her or she shall strike out or cause to be struck out of the original birth record carried out at birth. This record shall be shared or disclosed to the child when the child attains the age of 21 years. Thus, in effect, this is the procedural position of the law in dealing with ART while it leaves out larger stricter regulation. The actors in this legal space have become their own guardians and this is not functional in any proper medico-legal jurisdiction. The actors include the fertility centre, the IPs and the surrogate mother.
It is important to point out that as compared to the laws on surrogacy in the United Kingdom per the Surrogacy Arrangement Act 1985 before the grant of the application for pre- birth or post birth parental order to transfer parenthood, at least one of the IPs must be genetically related to the baby.
5.1. The Essence for Regulation of ART
It is imperative that the writer calls for the regulation of ART in Ghana based on his practice experience and the inadequacy of the law to fully deal with matters of legal concern in the ART space.
5.1.1. Commodification of Human Gametes or Children
This involves the commercialization by sale of reproductive capabilities which involve fertility and gestational childbearing. Clearly, the Human Fertilisation and Embryology Act 1990 as amended provides strict regulation on donor anonymity, consent, and tracking of donors. It is important for regulation to be put in place in Ghana to ensure that disadvantaged women will not be exploited. The donor system must be strictly regulated.
5.1.2. Discrimination
It must first be pointed out that the 1992 Constitution of Ghana prohibits discrimination of all kinds, be it in respect of race, gender, colour, religion, creed and economic or social status. Thus, patients who have multiple infertility causes cannot suffer discrimination based on race, socio-economic status. Keen to note is that, the position of the Ghanaian law is not so clear on sexual orientation or gender identity for persons who fall in this category as far as ART is concerned whereas in other ART laws around the world, this is so. It must be known that even though the matrimonial laws of Ghana recognizes biological male and female union, this area requires specific legislation. The absence of it means that, the industry is on its own dictates, whether its practices are frown on or not. The reality is that, there exists persons in Ghana with preferred sexual orientation and choice of gender identity who for whatever it is ply for ART. What is the position of the law on this, should they be denied? Yes or No, a legislation is the only answer. The Human Fertilization and Embryology Act 1990 of UK, as amend incorporated recognition of sexual orientation and gender identity for IPs. Ghana needs to come clear on this. Economic inequalities have also plagued this area which have affected couples seeking children. What governmental intervention may arise to attend to this in terms of the general commercial nature of services.
5.1.3. Right to Privacy and Confidentiality.
The Evidence Act, 1975 N.R.C.D 323 per Section 103 provides confirmed rights of protection and legal coverage on disclosing confidential communication on treatment or diagnosis of a patient to third parties. But save that this general law exists, there is no specific law that regulates privacy in the area of ART. That is, privacy of donors and the nature of relationships amongst donors and born children. The law must exist to regulate disclosures. The closest is Section 22(12) which says the District Registry of Births and Deaths can disclose the original birth record, confidential place of birth to the child when he/ she attains 21 years old. A little caution to put in is that Surrogate Arrangement contracts are not enforceable so such contracts cannot pull the plug for enforcement but regulation. Can the writer in another write up shall deal with this topic wholly.
5.1.4. Informed Consent
With Informed Consent, the Physician is expected to describe the proposed intervention to the IPs and must emphasize the IPs role in decision- making of the ART forms and choices and must also discuss alternatives to the proposed intervention. The Physician must also discuss the risks and its associated success rate as far as a particular intervention is concerned and same made known to the IPs. The diagnosis and likely outcome (prognosis) for the condition must be known. There must be detailed explanation of the recommended treatment as well as the risks associated as aforementioned together with the common side effects and possible complications. Alternative treatment, risks and success rates must be discussed for IPs to make an informed decision. More so, the donor needs to know about clinical risks of gametes donated as well as screening of donors of infections, diseases and genetic disorders. This should be performed on compensation regime if any, for donors of gametes.
6.0. Conclusion
The writer has touched on cardinal areas that require attention by the Parliament of Ghana and say that a very technical and important area as ART cannot exist without regulations. The absence of such stringent law to create an industry guided by a Human Fertilization Embryology Authority is an indictment on Ghana as far as healthcare delivery is concerned. This is an urgent call on mother Ghana !
Author – Christian Lebrecht Malm-Hesse Esq.
The post Surrogacy in Ghana: A call for regulation first appeared on 3News.
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