Surrogacy is no longer a novelty in Ghana. More families are turning to it. More clinics are facilitating it. More lawyers are being asked to structure it. The law, for its part, has started to respond. But only just. It is no longer entirely correct to say Ghana has no law on surrogacy. That position, while once accurate, no longer reflects the statutory landscape. Yet it would be equally wrong to suggest that Ghana now has a coherent and comprehensive legal regime governing assisted reproduction. It does not. What we have instead is something in between: statutory recognition without full regulation; legislative movement without complete legislative architecture.
That framework is found principally in the Registration of Births and Deaths Act, 2020 (Act 1027). Through it, Parliament has for the first time given express statutory recognition to assisted reproductive births and created a mechanism through which parentage arising from surrogacy may be regularised. That is progress. But progress and completion are not the same thing.
The Constitutional Framework
The 1992 Constitution says nothing directly about surrogacy. That is hardly surprising. The Constitution predates the modern fertility industry and was never drafted with assisted reproductive technology in mind. Still, constitutional principles remain relevant.
Article 15(1) provides that: “The dignity of all persons shall be inviolable.”
That matters. It places constitutional limits on how surrogate mothers may be treated, what may be demanded of them, and how far contractual arrangements may go. The Constitution also speaks to the welfare of children. Article 28(1)(a) requires legislative protection for children, while section 2 of the Children’s Act, 1998 (Act 560) reiterates the settled principle that the best interests of the child shall be paramount in any matter concerning a child. These principles will almost certainly frame any judicial consideration of a surrogacy dispute if and when one comes before the courts.
What the Law Now Provides
The centrepiece of Ghana’s present surrogacy framework is section 22 of Act 1027. It creates a statutory process through which intended parents and surrogate mothers may apply to the High Court for orders relating to legal parentage in assisted reproductive arrangements. The provision contemplates both pre-birth and post-birth applications.
Under section 22(2), an intended parent may apply within twelve weeks after the introduction of the embryo or gamete into the surrogate for what is, in substance, a pre-birth parental order. If satisfied as to the evidence of parentage and the existence of the surrogacy arrangement, the High Court may direct that the intended parent, the surrogate, or both be named as the legal parent or parents of the child. This requirement kicks in if the birth occurs within twenty-eight weeks of the order.
Where no such order is obtained before birth, the Act permits a further application after birth for a parental or substitute parentage order, upon which the Court may direct the registration or re-registration of the child’s birth accordingly. This post-birth order must be requested for earlier than twenty-eight days after birth and not later than six months after birth. Such an order is treated in the form of an adoption proceeding. An important point worth noting is that where a substitute parentage order is granted, the original birth record is struck out, sealed and kept confidential, and the child gains a right to access it at the age of twenty-one.
Without such an order, the default statutory position is plain enough: the woman who gives birth is to be registered as the mother of the child. That is no small development. It is the first serious legislative acknowledgment that surrogacy exists within Ghanaian family life and requires legal accommodation. But this acknowledgment is not clarity. The courts have not yet had much opportunity to develop jurisprudence on section 22. How precisely the provision will operate in contested or difficult cases remains to be seen.
The Contract Matters
Surrogacy arrangements are typically reduced into writing between intended parents and the surrogate. That is prudent. Indeed, it is essential. Such agreements usually address parentage, medical care, compensation, confidentiality, and consent to subsequent legal processes. Still, a surrogacy agreement should not be mistaken for a complete legal solution. It may record intention. It may regulate expectations. It may provide evidence. But no Ghanaian statute presently provides that such an agreement, by itself, conclusively determines legal parentage. Nor have the courts definitively pronounced on the extent to which such agreements may be enforced in the event of dispute. The contract is important. It simply is not everything.
When the Surrogate Is Married
Things become more complicated where the surrogate is married. Under section 32 of the Evidence Act, 1975 (N.R.C.D. 323), a child born during a marriage is presumed to be the child of the husband of the mother. The presumption is rebuttable. But unless rebutted, it remains the legal starting point. Its practical implication is obvious enough: where a married surrogate carries a child, her husband may presumptively occupy the position of legal father unless the appropriate legal and evidential steps are taken to establish otherwise. That is one reason lawyers may advise on the husband’s participation in the relevant documentation and legal process where applicable.
What of Adoption?
Before Act 1027, adoption was commonly used in practice to regularize parentage after surrogacy arrangements. Whether that remains necessary in every case is no longer entirely clear. Section 22 of ACT 1027 has changed the landscape. To what extent it has displaced adoption as the principal route to legal parenthood in surrogacy matters is a question the courts are yet to answer with any real precision. For now, the relationship between the parental-order mechanism under Act 1027 and the adoption framework under the Children’s Act remains a developing one.
The Surrogate Is Not Merely a Vessel
In public discourse, discussions of surrogacy often focus almost entirely on intended parents. The surrogate is treated as incidental to the arrangement. Legally, she is not. She remains a rights-bearing actor throughout the process. She retains bodily autonomy. No law authorises intended parents to compel her to undergo treatment, submit to procedures, or make reproductive decisions against her will. She retains dignity protections under Article 15(1). And until the statutory process under Act 1027 is completed, the precise contours of her legal position remain, in several respects, underdeveloped in Ghanaian jurisprudence. That uncertainty is not merely theoretical. It has practical implications for everyone involved.
Outstanding Work
Act 1027 is a meaningful beginning. It is not a finished framework. Other jurisdictions have gone considerably further. South Africa, for example, requires judicial confirmation of surrogate motherhood agreements before conception under Chapter 19 of its Children’s Act 38 of 2005.
The United Kingdom provides a dedicated parental-order regime under section 54 of the Human Fertilisation and Embryology Act 2008. Ghana, by contrast, still lacks a dedicated assisted reproduction statute, detailed procedural rules for surrogacy applications, and developed jurisprudence on the operation of its existing provisions.
The law has begun to speak. It has not yet said enough.
Conclusion
Surrogacy now sits within Ghana’s statutory framework. That much is clear. What remains less clear is how far that framework goes, how the courts will interpret it, and whether it is sufficient for the realities of a growing assisted reproduction industry. Act 1027 has moved the law forward. It has not completed the journey. Until the courts provide fuller guidance or Parliament enacts a more comprehensive legislative scheme, surrogacy in Ghana will remain an area of legal recognition attended by legal uncertainty. And where the law is uncertain, caution is not optional. It is essential.
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Joseph Ackah-Blay is an Associate at Renaissance Law Chambers, where he advises on corporate, commercial, regulatory, IT law and private legal matters. He writes generally on law, governance, and emerging legal issues. He holds a B.A., LL.B and QCL. He can be reached at j.ackahblay74@gmail.com
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