Legal regulation of surrogate motherhood in Ghana: A comparative study

Abstract

The thesis investigates the regulation of surrogate motherhood in Ghana, highlighting the legal vacuum that currently surrounds the practice. It begins by situating surrogacy within the broader cultural, social, and religious context of Ghana, where childbearing is highly valued, infertility often leads to stigma and divorce, and adoption is viewed as a last resort. Against this background, many childless couples are turning to surrogacy, even though it remains inadequately regulated and largely practiced covertly. The research underscores several problems arising from the lack of regulation, such as the exploitation of vulnerable women from low-income backgrounds, the unequal bargaining power between intended parents and surrogates, and the occurrence of contractual breaches due to weak or non-existent legal safeguards. It also highlights challenges like custody disputes and the abandonment of surrogate children, along with the exorbitant costs imposed by private clinics, which effectively exclude poorer couples from accessing surrogacy services. The study also emphasises the human-rights implications, particularly regarding reproductive rights, bodily autonomy, dignity, and the best interests of children born through surrogacy. It draws on international instruments such as the UDHR, ICCPR, ICESCR, CEDAW, CRC, CRPD, and the African Charter on Human and Peoples’ Rights, as well as Ghana’s 1992 Constitution and Children’s Act. To address this legal uncertainty, the thesis undertakes a comparative legal analysis with South Africa, which has one of the most progressive constitutional democracies in Africa. South Africa’s Children’s Act allows only altruistic surrogacy and provides judicial oversight, medical guidelines, and human rights protection for all parties. The thesis argues that this model offers a valuable framework for Ghana to adapt, given the similarities in culture and human rights commitments between the two countries. The expected contribution of the thesis is to propose a clear, workable, culturally appropriate and just legal framework for regulating surrogate motherhood in Ghana, thereby ensuring legal certainty, protecting surrogate mothers, intended parents and children, providing guidance for healthcare professionals, lawyers and courts, and serving as a potential policy reference for other Sub-Saharan African countries.