Surrogacy in Ghana: Recognised by Law, Yet Still Shrouded in Uncertainty

Surrogacy is no longer a distant or unfamiliar concept in Ghana. It is steadily becoming part of the country’s evolving reproductive and family landscape. Today, more couples facing infertility are turning to assisted reproductive technologies. More fertility clinics are facilitating such arrangements. More legal practitioners are being engaged to structure agreements and navigate the emerging legal terrain.

Yet, while practice has advanced rapidly, the law is still catching up.

For a long time, it was widely asserted that Ghana had no legal framework governing surrogacy. That claim is no longer entirely accurate. The reality today is more complex: Ghana now has partial legal recognition without a fully developed regulatory system.

This places the country in a transitional legal space—one that acknowledges surrogacy but does not yet provide the clarity, safeguards, and predictability required for a growing industry.

From Legal Silence to Legal Recognition

The most significant shift in Ghana’s legal position on surrogacy came with the enactment of the Registration of Births and Deaths Act, 2020 (Act 1027). This law marked a turning point by formally recognising births resulting from assisted reproductive technologies and creating a legal pathway for determining parentage in surrogacy arrangements.

Before this, intended parents often relied heavily on adoption processes to secure legal recognition after birth. Act 1027 has introduced an alternative mechanism—one that reflects the realities of modern reproductive science.

However, while this development is undeniably progressive, it is important to understand its limitations. The Act provides a framework, but not a complete system. It signals legislative intent but stops short of offering comprehensive regulation.

How the Law Works in Practice

At the centre of Ghana’s current surrogacy framework is Section 22 of Act 1027, which allows parties involved in assisted reproduction to seek court intervention in determining legal parentage.

Pre-Birth Orders

Intended parents may apply to the High Court within a specified period after embryo transfer for what is essentially a pre-birth parental order. If granted, the court may determine who should be recognised as the legal parent(s) once the child is born.

Post-Birth Orders

Where no pre-birth order is obtained, the law allows for a post-birth application. This enables the court to reassign parentage and direct the re-registration of the child’s birth.

However, this process comes with strict timelines, and in some cases resembles adoption proceedings, raising questions about how these two systems intersect.

Default Position

In the absence of a court order, the legal position remains straightforward:

The woman who gives birth is recognised as the mother of the child.

This underscores a critical point: legal parentage in surrogacy is not automatic—it must be established through formal legal processes.

The Constitutional Backbone

Even though Ghana’s 1992 Constitution does not directly address surrogacy, its principles remain highly relevant.

• Article 15 (Human Dignity): Protects surrogate mothers from exploitation, coercion, or degrading treatment.
• Article 28 (Child Welfare): Ensures that the best interests of the child remain paramount in all decisions affecting them.

These provisions serve as guiding principles for courts, especially in the absence of detailed statutory rules. In any dispute, constitutional values will likely shape judicial interpretation.

The Limits of Contracts

In practice, surrogacy arrangements are typically governed by written agreements between intended parents and surrogate mothers. These contracts often cover:

• Medical responsibilities
• Financial arrangements
• Consent to procedures
• Confidentiality
• Post-birth legal processes

While these agreements are essential, they have limited legal authority on their own.

They:

• Help define expectations
• Provide evidence in court
• Structure the relationship

But they do not conclusively determine legal parentage under Ghanaian law.

This creates a potential gap between what parties agree privately and what the law ultimately recognises publicly.

Complex Realities and Legal Gaps

As surrogacy becomes more common, several unresolved issues are becoming increasingly evident.

1. When the Surrogate Is Married

Under Ghanaian law, a child born within a marriage is presumed to be the child of the husband. This presumption can complicate surrogacy arrangements, especially if not properly addressed through legal documentation and court orders.

2. Adoption vs Parental Orders

Before Act 1027, adoption was the primary legal route for intended parents. Now, with parental orders available, it is unclear:

• When adoption is still required
• Whether both systems can coexist
• How courts will prioritise one over the other

3. Rights of the Surrogate

Public discussions often centre on intended parents—but legally, the surrogate is not a passive participant.

She retains:

• Bodily autonomy
• Decision-making authority over her health
• Constitutional protections of dignity

No agreement or expectation can override these rights.

How Ghana Compares Globally

Ghana’s approach, while evolving, still lags behind more developed legal systems.

• South Africa requires court approval of surrogacy agreements before conception.
• The United Kingdom has a detailed legal framework governing parental orders and surrogacy processes.

By contrast, Ghana lacks:

• A dedicated assisted reproduction law
• Clear procedural guidelines
• Established judicial precedents

This makes outcomes less predictable and increases legal risk for all parties involved.

The Growing Need for Reform

As surrogacy continues to expand in Ghana, the demand for a clear, comprehensive legal framework is becoming urgent.

Such a framework should address:

• Eligibility criteria for intended parents and surrogates
• Regulation of fertility clinics
• Ethical standards and compensation rules
• Clear timelines and procedures for parental orders
• Protection mechanisms for children and surrogate mothers

Without these, the system remains vulnerable to:

• Disputes
• Exploitation
• Legal uncertainty

Conclusion: Progress Without Completion

Ghana has undeniably moved forward. Surrogacy is no longer invisible in law—it is recognised and partially regulated.

But recognition is only the beginning.

What remains is the hard work of building a coherent, reliable, and comprehensive legal system that reflects the realities of modern family life.

Until then, surrogacy in Ghana will continue to exist in a delicate balance:

Legally acknowledged—but not fully understood
Practically widespread—but not fully regulated

And in that space, one truth remains clear:

Where the law is uncertain, caution is not just advisable—it is essential.

About the author: 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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