International surrogacy arrangements involving Ghana are increasing, particularly among British citizens, settled persons in the UK, and members of the Ghanaian diaspora seeking fertility treatment and surrogacy arrangements abroad. However, many intended parents wrongly assume that obtaining a Ghanaian birth certificate automatically gives the child British citizenship or entitlement to a British passport. It does not.

Recent developments in both Ghanaian and English law show that international surrogacy cases are legally complex and require careful planning from the outset.

In the recent case of A and another v C and another, the High Court in England reaffirmed that in parental order applications under section 54 of the Human Fertilisation and Embryology Act 2008, the welfare of the child is the paramount consideration. The court adopted a flexible and purposive approach in international surrogacy cases, especially where payments, domicile, and procedural issues arise.

For intended parents using surrogacy arrangements in Ghana, this decision is important because UK immigration status, British nationality, and passport entitlement frequently depend on whether UK law recognises the intended parents as the child’s legal parents.

 

The Legal Position on Surrogacy in Ghana

Ghana now has statutory recognition of surrogacy arrangements through the Ghanaian Registration of Births and Deaths Act, 2020 (Act 1027). Section 22 specifically recognises assisted reproductive births and surrogacy arrangements.  

The legislation allows intended parents to apply to the High Court in Ghana for:

• a pre-birth parental order; or
• a post-birth parental order/substitute parentage order.

 

Under section 22(2), intended parents may apply within twelve weeks after embryo transfer for a pre-birth parental order. If granted, the High Court may direct that the intended parent(s) be recognised as the legal parents of the child upon birth.  

This is a significant development because traditionally, the woman who gives birth to the child would automatically be recognised as the legal mother.

The Ghanaian legislation now attempts to regularise surrogacy and provide certainty regarding parentage.

 

What Is a Pre-Birth Parental Order in Ghana?

A pre-birth parental order is an order obtained from the High Court of Ghana before the child is born.

The application is typically supported by:

• the surrogacy agreement;
• fertility clinic documentation;
• embryo transfer records;
• medical reports;
• evidence of genetic parentage where available;
• affidavits from the intended parents and surrogate mother;
• consent documentation.

 

If satisfied, the High Court may order that the intended parent(s) be recognised as the legal parent(s) upon birth. The order is then transmitted to:

• the Births and Deaths Registry;
• the hospital;
• the surrogate mother;
• the intended parents.  

This assists with registration of the birth and can avoid significant disputes after delivery.

 

Does a Ghanaian Parental Order Automatically Apply in the UK?

No.

This is one of the most misunderstood areas of international surrogacy.

Even where Ghana recognises the intended parents as the legal parents, UK law may still regard the surrogate mother as the child’s legal mother.

 

Under UK law:

• the woman who gives birth is generally treated as the legal mother at birth;
• if she is married, her spouse may also be treated as the second legal parent;
• intended parents usually require a UK parental order under the Human Fertilisation and Embryology Act 2008 for full recognition in England and Wales.

 

Therefore, intended parents who return to the UK after a Ghanaian surrogacy arrangement frequently still need:

• a parental order application in the UK Family Court;
• immigration applications for the child;
• nationality assessments;
• passport applications.

 

Can a Child Born Through Surrogacy in Ghana Obtain a British Passport?

Possibly –  but not automatically.

The answer depends on:

• genetic parentage;
• the marital status of the surrogate;
• whether a British parent is biologically related to the child;
• whether a UK parental order has been obtained;
• whether British nationality passed automatically at birth.

 

Many parents mistakenly believe that being named on a Ghanaian birth certificate guarantees British citizenship. This is incorrect.

UK nationality law focuses on legal parentage recognised under British law.

 

Common Scenarios

• Where the British Father Is the Genetic Father
• If the British intended father is genetically related to the child, the child may automatically acquire British citizenship by descent.

 

However, HM Passport Office frequently requests extensive evidence, including:

• DNA evidence;
• surrogacy agreements;
• fertility clinic records;
• embryo transfer documentation;
• evidence regarding the surrogate mother;
• parental consent documents;
• foreign court orders;
• birth certificates.

 

In many cases, HMPO conducts detailed investigations before issuing a British passport.

Where Donor Eggs and Donor Sperm Are Used

This creates significantly more complex nationality issues.

If neither intended parent has a genetic connection to the child, British citizenship may not pass automatically at birth.

In such cases, the intended parents may need:

• a UK parental order;
• registration applications;
• entry clearance applications;
• adoption-related immigration processes.

 

UK Visa Options for Children Born Through Surrogacy in Ghana

 

Where a British passport cannot immediately be obtained, the child may still be eligible for UK entry clearance.

Potential routes include:

• entry clearance as the child of a British citizen;
• family visa applications;
• discretionary leave applications;
• adoption-related routes;
• registration after a parental order.

 

Each case turns heavily on:

• genetic evidence;
• legal parentage;
• immigration status of the intended parents;
• documentary evidence.

 

Documents Commonly Required

Families involved in Ghanaian surrogacy arrangements should preserve comprehensive evidence from the very beginning.

Typical documents include:

 

Ghanaian Documents

• Ghana High Court parental order;
• Ghanaian birth certificate;
• surrogacy agreement;
• affidavits;
• consent forms;
• hospital records;
• fertility clinic records;
• embryo transfer documentation;
• antenatal and postnatal medical records.

 

UK Immigration and Nationality Documents

• intended parents’ passports;
• proof of British citizenship;
• marriage certificates;
• DNA reports where relevant;
• evidence of domicile;
• parental order applications;
• financial evidence;
• evidence of care arrangements.

 

The Importance of DNA Evidence

DNA evidence is often critical in international surrogacy cases.

Although DNA testing is not legally mandatory in every case, HM Passport Office frequently requests it where parentage is disputed or unclear.

Testing should only be undertaken through approved and properly accredited providers.

Improper or privately arranged DNA tests may be rejected.

 

The Welfare Principle and the Decision in A v C

The significance of A and another v C and another is that the High Court strongly reaffirmed that the child’s welfare is the court’s paramount consideration in international surrogacy cases.

The court moved away from rigid public policy objections and instead focused on welfare-based analysis.

 

The judgment suggests that, save in cases of very serious exploitation or misconduct, the courts are likely to adopt a pragmatic and child-focused approach.

This is particularly important in cross-border arrangements involving countries such as Ghana where surrogacy laws continue to evolve.

 

Legal Risks in International Surrogacy Cases

Despite increasing legal recognition, international surrogacy arrangements remain legally sensitive.

Potential issues include:

• disputes over parentage;
• immigration delays;
• refusal of British passports;
• nationality uncertainty;
• exploitation concerns;
• unenforceable surrogacy agreements;
• conflicts between Ghanaian and UK law;
• difficulties leaving Ghana with the child;
• delays obtaining emergency travel documents.

Careful legal advice should therefore be obtained before any surrogacy arrangement begins.

 

Conclusion

International surrogacy involving Ghana sits at the intersection of family law, immigration law, nationality law, and international private law.

While Ghanaian law now expressly recognises surrogacy arrangements and permits pre-birth parental orders, intended parents must still ensure that UK legal requirements are fully addressed.

A Ghanaian birth certificate or court order alone may not be sufficient to establish British citizenship or entitlement to a British passport.

Early legal planning is essential to avoid significant delays and legal complications after the child’s birth.

 

At BWF Solicitors, we advise on:

• international surrogacy arrangements;
• British nationality applications;
• British passport applications;
• UK parental orders;
• family visas;
• complex immigration matters involving children born overseas.

For advice regarding international surrogacy and UK immigration consequences, contact BWF Solicitors

UK: +44 20 8493 7340

Ghana: +233 50 462 2794

Emergency: +44 77 1276 1884

Email: admin@bwfsolicitors.com

Website: www.bwfsolicitors.com

or complete our enquiry form below:

https://bwfsolicitors.com/consultation/ 

About the writer:

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.