There is a strong desire for couples struggling with childbirth through natural conception to try the surrogacy route. This is good news, but it also comes with the risk of disappointment, even in the best of circumstances.
This article focuses on the U.K. law on British citizenship or residency for the new-born child, with a special focus on Ghana.
Surrogacy is when a woman carries and gives birth to a baby for another person or couple. Surrogacy may be appropriate for women with a medical condition that makes it impossible or dangerous for them to get pregnant and give birth.
There are two types of surrogacy: Full surrogacy (also known as host or gestational surrogacy) is when the eggs of the intended mother or a donor are used, and there is therefore no genetic connection between the baby and the surrogate.
Partial surrogacy (also known as straight or traditional surrogacy) involves the surrogate’s egg being fertilised with the sperm of the intended father. Surrogacy is legal in the UK, although surrogacy arrangements are not enforceable by law.
When a child is born through surrogacy, the intended parent(s) must apply to the family court for a parental order. There is a similar requirement under the Ghana Registration of Births and Deaths Act, 2020 (Act 1027). The parental order transfers legal parenthood from the surrogate (and her spouse, if she has one) to the IP(s). It can only be made with the surrogate’s consent.
In Ghana, in the first instance, an application must be made to the High Court for a pre-birth Parental Order. A pre-birth Parental Order may name the intended parent, a surrogate mother, or both as the parents of a child born through surrogacy and confer parental rights on the persons named as legal parents of the child. In the absence of a pre-birth Parental Order, the Surrogate Mother will be named as the mother of the child with parental responsibilities.
The Ghana Act 1027 defines Surrogacy as: (a) an arrangement where an embryo formed from the egg and sperm of persons other than that of a surrogate mother and her partner or husband is implanted into the surrogate mother; or (b) where a gamete is introduced into a surrogate mother to fertilise the egg of the surrogate mother for the purpose of enabling the surrogate mother to carry the foetus and give birth on behalf of the Intended Parents (i.e. the person who desires to be a parent through surrogacy or any other assisted reproductive birth arrangement). Under the laws of Ghana, an application for a pre-birth Parental Order must be brought before the High Court within twelve (12) weeks of introducing an embryo or gamete into the surrogate mother, and the birth of the child must occur within twenty-eight (28) weeks of the grant of the order by the High Court.
United Kingdom law will not recognise the legal parenthood of both intended parents at birth, even if this has been registered on the birth certificate or confirmed by court order in the jurisdiction of the child’s birth, because the woman who gave birth will always be regarded as the legal mother of the child by United Kingdom law unless a parental order is obtained as described above. The child’s nationality will depend on legal parenthood at birth. That means that British nationality and immigration law comes into play, as a child born to a surrogate mother abroad is not necessarily British and may need a visa to come to the UK to live with their intended parents. Where the surrogate is not married to a man, then the intended father is the legal father from birth if his sperm has been used in the surrogacy arrangement (for example, as evidenced by a DNA test or by his registration on the birth certificate). In this case, as long as the intended father is a British citizen (otherwise than by descent), the child will be regarded as a British citizen from birth and can be issued with a British passport. While citizenship is not automatic in all cases, the child can still be recognised as a British citizen by virtue of the surrogacy arrangement itself. The intended parents will need to “register” the child as a British citizen with United Kingdom Visas and Immigration (UKVI) under the British Nationality Act 1981 (https://www.legislation.gov.uk/ukpga/1981/61/section/3 ).
This registration must be done before any travel documents may be issued. If the child is not a British national by birth, then the intended parents will need to apply for an entry clearance visa into the United Kingdom for the child.
This is sometimes granted on a discretionary basis, “outside the Immigration Rules”, but also granted under Paragraph 297 of the Immigration Rules, https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-8-family-members, depending on several factors.
I have outlined some of the important factors in this short article, and I hope this will assist potential surrogacy arrangements in Ghana. This is a complex area of law, and it is important that potential commissioning couples seek legal advice.
Bennard Owusu is an accredited member of the Law Society Family Law Accreditation Scheme and a member of the Ghana Bar Association. Family Law Accreditation is a recognised quality standard for family law practitioners in the U.K.