What is surrogacy
Surrogacy is an arrangement where an embryo formed from an egg and sperm of persons other than a surrogate mother and their partner or husband is implanted into the surrogate. It is also an arrangement where a gamete from a person other than the partner or husband of a surrogate mother is introduced into the surrogate to fertilize the egg of the surrogate.
A surrogate mother is a woman who has accepted under a surrogacy agreement to carry a fetus of another woman for the period of the pregnancy and give birth to a baby at the end of the period for that other woman or the intended parent. An intended parent is a person who desires to be a parent through surrogacy or any other assisted reproductive health arrangement.
Several women of reproductive health experience some sort of infertility that prevents them from having children without assisted arrangement. Some couple have viable sperm, ovum, and uterus, but simply have trouble conceiving. Assisted procedures like surgery, artificial insemination, and various forms of in vitro fertilization often help them overcome their inability to successfully conceive and bear a child.
What is a Prebirth Parental Order?
A prebirth parental order is a legal document that says a person will be a child’s legal parent before the child is born. In surrogacy arrangements, both the intended parents and the surrogate have an existing presumption for establishing parentage to the child. The intended parent is presumed to be the child’s genetic mother. At the same time the surrogate is presumed to be the child’s birth mother. Both the surrogate and the intended parents have competing claims for establishing parentage to the child.
However, in the absence of a prebirth parental order, the surrogate is presumed to be the biological and legal mother of the child and may appear on the medical records of the child as such, including the child’s birth certificate. A prebirth parental order overcomes those presumptions and provides the hospital with a directive from the Court that the woman who gives birth is a surrogate and not biologically related to the child.
What are the benefits of a Prebirth Parental Order?
A prebirth parental order has significant utility for all parties in the arrangement including the intending parents, the surrogate, and even the medical facility. Some of the benefits are as follows:
- A prebirth parental order determines the intended parents as the legal parents of the child before the child’s birth, thereby giving them immediate and sole access to and control over the child and its postnatal care and medical treatment when it is born.
- It also allows the names of the intended parents to be entered on the original birth records at the hospital and other relevant departments of health and births. This avoids additional paperwork and expense of amending the records of the child’s birth certificate post birth.
- The determination of the parentage before birth also allows the hospital to discharge the child directly to the intended parents. This avoids the awkward situation of the surrogate carrying the child out of the hospital only to deliver it into the physical custody of the intended parents.
- A prebirth parentage order also helps the intended parents to participate in the delivery and hospital experience from an emotional and psychological experience. Participating in the process brings the experience as much like the natural delivery of their own child as possible.
- Protects the surrogate from having to shoulder unintended parental responsibilities.
- It provides the intended parents the ability to make medical decisions about the child immediately.
What is the process of obtaining a Prebirth Parental Order?
The process for obtaining a prebirth parental order in Ghana is now regulated by statute. An application may be made to the High Court in Ghana by the intended parent, within 12 weeks after introducing a gamete or embryo into the surrogate. The prebirth order allows either the intended parent or surrogate mother, or both parents of the child to be named as the parent of the child if the birth occurs within 28 weeks of the order of the High Court.
The Court may issue a prebirth parental order if it is convinced of the evidence of parentage and the existence of a surrogacy. The order shall name the legal parent of the unborn child and a copy of the order shall be issued to the following persons:
- the District Registrar of Births and Deaths of the District in which the child will be born
- the intended parent
- the surrogate mother
- the hospital where the child is born if the birth occurs at a hospital facility
In the absence of a prebirth order from the Court naming another person as the mother, surrogate shall be registered as the mother of the child. The surrogate shall have the right to register the child, and provide all particulars required for the registration, including the name of the child and the name of the child’s father.
Where a prebirth order is issued and served on the District Registrar or on the hospital where the child was born, the District Registrar or the hospital, where appropriate shall register in the district office of the Registry the birth arising from the surrogacy in accordance with the prebirth parental order and the name of the child provided by the registrant.
What happens if a surrogate gives birth to a child without a Prebirth Order?
If there is no prebirth order naming another person as the parent of the child before the child is born, the surrogate shall be registered as the mother of the child. This is the case even if there is a surrogacy agreement between the surrogate and the intended parent.
Nonetheless, either the surrogate or the intended parent may apply to the High Court for the issuance of a post-birth parental 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 determination by the Court, might have been recognized as the parent of that child. Evidence of genetic relationship to the child may be required in order to obtain this order.
Where the Court issues a post-birth parental order or a substitute parentage order naming the intended parent or the surrogate as the legal parent of the child, a copy of the order must be immediately served on the District Registrar of Births and Deaths.
A post-birth parental order or substitute parentage order operates in the form of an adoption proceeding. The application must be lodged at the High Court at least 28 days after the birth of the child but not later than 6 months after the birth of the child.
On receipt of a sealed substitute parentage order from the Court, the District Registrar shall strike out the original birth record and open a new birth record with the intended parent or surrogate named as the parent of the child in accordance with the substitute parentage order. A new birth record entered based on a substitute parentage order supersedes any other earlier birth record.
The District Registrar shall keep the original birth record struck out in a confidential place, and that birth record must be made available to the child whose birth entry was altered only when the child attains the age of 21 years.
A prebirth parentage order is a legal mechanism that gives intended parents the assuredness, certainty, and control over the unborn child. It also militates against any post-birth issues like competing parentage, and other issues already elaborated in this article.
Although post birth parentage or substitute parentage orders may be activated to address failure to obtain prebirth orders, the stress, costs, and paperwork involved in amending entries in early child health and birth records do not augur well for pursuing post birth legal mechanisms to establish parentage.