Socio-ethical and legal issues regarding surrogacy in Ghana: a qualitative study

Abstract

Introduction

Surrogacy has recently emerged as a crucial fertility treatment solution due to the development of in-vitro fertilization (IVF). There are however a number of socio-ethical and legal issues, including parental rights, children’s basic human rights, and abuse of women, most notably surrogate exploitation. In Ghana, these socio-ethical issues have not been well studied. This study aimed to explore the socio-ethical and legal issues regarding surrogacy in Ghana.

Method

A phenomenological qualitative study was conducted. A total of 13 participants comprising couples undergoing fertility treatments, surrogates, fertility specialists, lawyers, and bioethicists were selected using a combination of purposive and snowball sampling. Data were collected via in-depth interviews. In-depth interviews were tape-recorded and transcribed verbatim. A thematic content analysis approach was used to analyse the data and results were presented using quotes.

Results

The results suggest that couples will resort to surrogacy when all treatments have failed. This decision is however influenced by age, economic status, family and societal pressure. Surrogates are both altruistically and monetarily motivated to enter into surrogacy arrangements. However, surrogacy practice in Ghana is marred with numerous ethical issues including lack of informed consent, exploitation, abuse, issues of compensation and maltreatment of surrogates. These issues are compounded by a weak legal and regulatory framework which is unable to address uncertainties and abuse.

Conclusion

Even though surrogacy has come to address infertility issues in infertile couple, it is faced with ethical issues and weak legal system. Specific legislation on Assisted Reproductive Technologies (ARTs) and surrogacy is urgently needed to address the uncertainties in the practice, protect the rights of surrogates, and minimize abuse.

Clinical Trial Number Not applicable.

Supplementary Information

The online version contains supplementary material available at 10.1186/s12978-025-02007-z.

Background

Many couples dream of having children. However, some men are born impotent; others become impotent as a result of illness later in life or an accident. Similarly, some women do not have viable eggs; others have fertile eggs but are unable to reproduce due to circumstances such as ruptured uterus, lack of uterus and fragile biological system [1]. Infertility affects roughly 80 million individuals of reproductive age worldwide, and it affects around 15% of all marriages [2]. In Sub-Saharan Africa, the average infertility prevalence is estimated to be 1.1% [3]. In Ghana, infertility prevalence is 11.8% among women and 15% among men [4].

Infertility has been found to affect the physical, psychological, and social wellbeing of individuals, including the experience of anxiety, depression, divorce, discrimination, social isolation, lack of economic security and stigmatization [5–7]. In Ghana, a recent study by Rosemary Hiadzi [8] on the experiences of Ghanaian women with infertility problems confirmed several of these challenges. This encourages couples to seek therapies to help them accomplish their reproductive goals. Thus, the desire for children has become a private matter with extremely sensitive overtones impacted by religious, social, and political issues [9].

Surrogacy has been referenced since the olden days, and Babylonian customs and traditions allowed this procedure to prevent otherwise inescapable divorce [10]. The term “surrogate” is derived from the Latin verb “subrogare,” which means “assigned to act in the place of.” Thus, a surrogate is a woman who becomes pregnant and gives birth to a child with the intention of delivering the child to another person or couple, known as the "intended" or "commissioning" parents [11]. Many traditional African communities also had a number of traditions that, whether intentionally or unintentionally, acted as techniques for dealing with infertility. Anthropologists have documented numerous polygamous or plural marriages that provided infertility treatments [12]. Polygyny, for example, was a prevalent characteristic in traditional Ghanaian society and permitted a man to marry more than one wife at the same time, which might alleviate an infertility problem in the first wife and, as a result, childlessness in the home [12, 13]. Similarly, sororate (sister) marriages, which are widespread among ethnic groups such as the Dagaaba of Northern Ghana, allows female siblings or cousins to marry their own sisters’ husband, which may serve the latent function of alleviating infertility problems in the first wife [14]. Female spouses or woman-to-woman marriages are also common among Nigeria’s Igbo—a circumstance in which an infertile wife finds a young bride for her husband with whom he can have children. Children born as a result of this arrangement, however, are adopted as her own by the first wife, allowing such infertile women to have children [15].

With the advent of in-vitro fertilization (IVF), surrogacy has recently become an important fertility treatment solution where women without a womb or a serious medical condition could become mothers by transferring an ovum created by themselves or a donor to the uterus of a gestational carrier [18]. Surrogacy today is thus largely a contractual agreement in which a woman (surrogate) agrees, prior to conception, to become pregnant and gestate a baby on the understanding that upon birth, the baby along with all parental rights and obligations, will be handed over to the intended or commissioning parents [19]. Surrogacy arrangements may be altruistic or commercial. Despite the fact that the surrogate is compensated for her healthcare and other pregnancy-related costs, including insurance coverage, altruistic surrogacy arrangements do not involve monetary compensation [19]. In an altruistic arrangement, the surrogate is often a close cousin or friend of the commissioning parents [20]. Commercial surrogacy, on the contrary, necessitates the payment of an agreed-upon fee to the surrogate. The law that governs these partnerships differs greatly among jurisdictions. While some countries prohibit commercial surrogacy, others permit both commercial and altruistic surrogacy, or exclusively the latter [19]. Some countries are surrogacy-friendly because they explicitly allow it [19], whilst others, such as Ghana, have recognized surrogacy practice in the Registration of Births and Deaths Act, 2020 Act 1027 but do not have a substantive legislation on surrogacy and ARTs.

While surrogacy is increasingly being practiced across the world, there are a number of socio-ethical and legal issues, including concerns about parental rights, children’s basic human rights, and abuse of women, most notably surrogate mother exploitation [21]. In Ghana, these socio-ethical and legal issues have not been extensively studied. Recent relevant Ghanaian scholarship in this area includes Hiadzi, Woodward and Banafo’s study on the ethical issues surrounding the use of assisted reproductive technologies in Ghana [22]. To expand this literature, our study aimed to examine the socio-ethical and legal issues regarding surrogacy, focusing on the perspectives of surrogates, couples, and other stakeholders in Ghana.

Methods

Study design

The study employed a phenomenological qualitative research approach. Qualitative research is frequently used to explore phenomena as it aids researchers in gaining a better grasp of the underlying reasons, viewpoints, and motives [23].

Study setting

The study was conducted in the Greater Accra region of Ghana where the majority of fertility clinics in the country are located. Thirteen registered fertility clinics in the Accra-Tema Metropolitan Areas of Ghana were contacted to participate in the study. Only 2 facilities agreed to participate in the study and follow-up from the other facilities were discontinued. Together these facilities attend to 105–110 fertility cases using artificial reproductive techniques every month with a success rate of approximately 80%.

Study participants

Participants in this study were surrogates, couples going through fertility treatments, fertility specialists, bioethicists, and lawyers who were aged 18 years and above. Gay couples were excluded in the study as such relationships or marriages are an illegal practice in Ghana.

Sampling and recruitment

Purposive sampling was used to select the two facilities because other fertility clinics refused participation. Snowball sampling was used to recruit the surrogates and couples going through fertility treatment. Purposive sampling was used to recruit the bioethicists, fertility specialists and lawyers. In total 13 participants were interviewed: 4 surrogates, 2 couples going through fertility treatment, 3 fertility specialists, 2 lawyers, and 2 bioethicists.

Data collection methods and tools

Semi-structured in-depth interviews were the main data collection methods. The semi-structured interviews were used to explore several key questions relevant to the study objectives. While the interview guides were semi-structured to enable us ask relevant questions to address our research specific research objectives, the guides had a lot of flexibility that allowed us to pursue concepts or responses that emerged during the interviews. This flexibility has been highlighted in literature as a major benefit of using the semi-structured interview approach [24]. The semi-structured in-depth interview method ensured that participants were active participants in the interview process and were able to reveal their subjective meanings through their verbal and non-verbal cues [25]. For the couple and surrogates, the interview guide contained information on socio-cultural factors that affect their decision to engage in surrogacy, socio-ethical issues of surrogacy, contractual agreement and the challenges they encounter during surrogacy arrangements. Fertility specialists shared their experiences in the surrogacy process, the ethical issues regarding surrogacy and the legal framework in which surrogacy operates. In-depth views on the legal framework governing surrogacy and the ethical concerns in the Ghanaian context were sought from the lawyers. The bioethicists threw light on the ethical issues and the ethical frameworks surrounding surrogacy in Ghana.

The interviews were held at different places including offices (for fertility specialists, bioethicists, and lawyers) and homes (for the surrogates and couples). Each interview lasted between 30 and 60 min. The permission of the participants was requested before interviews were recorded. The interviews were conducted in both English and Twi (a local dialect) depending on the language the participant preferred. The interviews were conducted by the first author who is fluent in both English and Twi.

Data processing and analysis

All audio-recorded data were transcribed verbatim into Microsoft Word. All interviews that were conducted in Twi were first transcribed in Twi, and then translated into English. Back-to-back translation was done on two transcripts by an independent translation specialist to check the quality of the translation. All field notes were written up. The research team then reviewed all transcripts to correct grammar and typographical errors.

Thematic content analysis approach was used to analyse the data. The process involved critically reading the various transcribed data severally to identify common phrases and expressions that emerged in each data unit [26]. A preliminary coding structure and a codebook were created by the research team. We used a combination of deductive and indicative coding approach. We started out with a deductive approach where we organized the data around three broad themes or issues that we were interested in exploring, namely the experiences of surrogates, the ethical issues arising from surrogacy arrangements, and legal and regulatory framework governing surrogacy practice in Ghana. Within these three broad themes, we used an inductive coding approach to derive sub-themes. That is, we searched/combed through the transcripts to discover new subthemes to explore.

The first author carried out the initial coding, categorization, and theming of the data. These were reviewed by the other research team members. All the authors then discussed and agreed on the themes. Once a theme was established, the transcripts were re-read to ensure that the theme appropriately reflected the content of the interviews. Relevant quotes were then used to support each theme. The Consolidated criteria for reporting qualitative interviews (COREQ) guidelines were used to guide the reporting of findings [27].

Reflexivity

As members of the Ghanaian society, we acknowledged that we as researchers may, individually or collectively, not have been completely immune from some of the negative perceptions about infertility, birth by IVF and surrogacy. More importantly, the first author (RA) who led the study is a female who has experienced pregnancy and is well aware of both the joy and stress that pregnancy and childbirth come with. Therefore, we were keenly aware of the potential for personal and intellectual bias in the collection and analysis of data in this study. Consequently, throughout the research process, the researchers engaged in reflexive practices, critically reflecting on our prior assumptions, biases, and perspectives that may influence data collection and analysis. We held several debriefing and discussion sessions to reflect on how the data collection was progressing and also whether the questions we were asking suggested any biases. Seminar reflexive engagements were had during the data analysis and interpretation stage. Reflexivity was facilitated by journaling, while allowed the researchers to document and interrogate their own positionality and its impact on the research process.

Results

The findings have been organized around three main themes which were deductively derived from the data based on our research objectives (see Table 1). The themes included (1) experiences of surrogates, (2) ethical issues arising from surrogacy arrangements, and (3) legal and regulatory framework governing surrogacy practice in Ghana. Each of these themes has several sub-themes, which were inductively derived from the data. These themes are examined in detail below.

Table 1.

Main themes and sub-themes

SRL	Main themes		Sub- themes
1	Experiences of surrogate women		• Altruistically motivation • Monetary motivation • Limited comprehension capacity on procedure and implication
2	Ethical issues arising from surrogacy arrangements	Ethical issues from surrogates’ perspective	• Informed consent • Stigmatization • Compensation • Mistreatment • Psychosocial and emotional issues
		Ethical issues from couple’s perspectives	• Defaultment • Extortion • High Financial Burden • Stigmatisation
		Ethical issues from Bioethicists’ perspective	• Issues of Autonomy and Commodification • Morally right to pay for carrying a baby
		Ethical issues from lawyers’ perspective	• Full understanding of contract • Exploitation
3	legal and regulatory framework governing surrogacy practice in Ghana		• ACT 1027 section 22 recognizes surrogacy parties • ACT address issues of parentage • Unpopular nature of the ACT • ACT is inadequate and does not address abnormalities and uncertainties in surrogacy arrangements

Experiences of surrogate

The first issue we explored focused on in this study was the experiences of surrogate—their motivation, aspirations and challenges. The four surrogates we interviewed expressed both altruistic and monetary motivations for engaging in the surrogacy arrangements. Even though some of them were initially altruistically motivated to help a couple get a child, monetary motivation later came in during the pregnancy.

When I was informed to be a surrogate, I considered the happiness of the couples too, because in Africa here, you know, childbirth is one essential thing when you get married, both families are looking up to you to give birth. So, I think that motivated me, for the happiness of the couples and for them to be socially appreciated. [Surrogate 1]

Others specifically were motivated to enter surrogacy partly because of economic hardship:

Yes, it’s true… it is because of economic hardship that’s why I decided to do it but my actions will bring joy into the lives of other people. [Surrogate 4]

Please all the people who come to stay in the surrogacy house, are doing it for money [Surrogate 2]

Surrogates however reported that the monetary compensation was often too small and not commensurate with the sacrifices they often made:

For me, I think the money is small because the major thing is the C-section. Just receiving this [small] amount of money… It must be increased … For my own, I received 20,000 Ghana cedis. [Surrogate 1]

For my second one [surrogacy], I got triplet for the person. They said the payment will be 36,000 GH cedis; they could have topped up to 40,000 GH cedis because of the pain and struggle in carrying the triplets. There are some agencies that will top up for you, others will not. [Surrogate 4]

I will say one aunty at the agency was my comfort. I used to tell her that this couple that I got, they don’t call to check up or anything… the people involved were not cordial, so if I was a bad person I would have run away with the child since they didn’t know where I come from. Most of the time, when helping someone and the person doesn’t mind you it is very painful, especially when you are putting your life on hold for the person. [Surrogate 4]

Surrogates also revealed that there are different mode of payment terms depending on the agency that engaged them.

The payment terms are either you are given half payment during the first eight months, or paid everything after delivery…. the surrogate will pick the option favourable to them [Surrogate 4]

They also reported that the amounts they agreed on as compensation was the same amount that was given to them after the pregnancy was over:

Yes, we went to a lawyer, all these conditions were spelt out and I agreed and I swore to all the conditions and I signed. I was entitled to monthly feeding allowance and at the end of the period receive my payments [Surrogate 3]

Yes, I received the amount they promised me. [Surrogate 2]

Yes, it was the same amount that I was paid. [Surrogate 1]

Surrogates however reported that they were given general information before the entire process began, including how they will go through treatments before the insemination and the mode of delivery. However, potential risks and dangers of the procedure were often omitted.

No, I wasn’t taken through any dangers. No, no. I wasn’t taken through that. [Surrogate 1]

No, they did not because if you ask, all that they say that the process does not have any side effects. But after the process I found out that the process has its own side effects. [Surrogate 2]

Some of the surrogates also reported that they had limited comprehension capacity on the procedure and its implications on their health.

They explained everything to me beforehand, but I think everybody has their own understanding capacity…A lady I knew was saying that she kept getting sick every month, but the nurse told me that what that lady was suffering from was related to her heart. The lady was not honest to the doctor and she did not disclose that medical condition. The lady also said that she also did not know she had that medical condition because she has already given birth to a child and she did not experience anything of that sort. It’s only this pregnancy that she started experiencing that medical condition. [Surrogate 2]

Ethical issues

Ethical issues from the perspectives of surrogates

For surrogates, a number of ethical issues were reported including informed consent, stigmatization, compensation, mistreatments and psychological/emotional and health challenges.

Informed consent

Surrogates revealed that they were given general information about the entire procedure but potential risks and dangers of participation were often omitted:

No, nobody explained anything of such sorts to me [surrogate 3].

No, they did not and I did not ask because I had done one and went to give birth to my own child before doing the second one so I think its safe [surrogate 4].

Stigmatization

The surrogates reported that due to stigma, they prefer to enter the arrangement in secrecy, including not informing immediate family members about it for fear that they will be tagged as selling their own babies.

Madam, you see we Ghanaians, our way of thinking is quite different…if you discuss such things with someone, they will conclude that you have sold your own child to someone. So society will stigmatize you. The children that we carry are not ours… my mother will never understand it. [Surrogate 2]

I convinced my husband to do it. We are in a place where no family member is around us, so none of them got to know about it. So, it was between my husband and I, we did it [Surrogate 1]

I cannot just tell my family like that. [Surrogate 4]

No, I did not inform anybody. Personally, I think this type of arrangement you should not inform any family member because if through this surrogacy God blesses you financially later in life people will point fingers at you that it is through surrogacy that you became rich...because of future stigmatization. [Surrogate 3]

Compensation

Surrogates reported that even though the agreed amount was the monies they received at the end of the surrogacy arrangements, the money does not compensate them enough for their sacrifices during the entire process.

I think the kind of payment should be more concerning because when you look at the situation whereby you have not given birth before and first time being a surrogate, they perform a CS on you, I think for that matter, if care is not taken all your child births will be through CS. So, for me, my agency was opting for a vaginal birth, but you know the doctor was saying a whole lot of things concerning it and then the pre-eclampsia thing. So definitely it had to be a CS. I think the money involved is small [Surrogate 1]

I will stress on the money issue because you should be able to do something tangible with the money after 9 months of sacrifice and caesarean section. If I had gone to do this arrangement in UK, I would have gotten some substantial amount from it [Surrogate 2]

I know they take a lot of money from these couples, and they give us small in the name of ‘they are providing us with accommodation and food’. So, the company that the doctors have established are the ones cheating us [Surrogate 2]

Mistreatments

Surrogates are either kept in a house that the surrogacy agency has provided or stay in residences agreed in the contracts. Both forms come with challenges as revealed by the surrogates in this study.

There are some facilities that will say that they have prepared the meals for the month inside the fridge and that is what you are supposed to eat for the month. When it gets finished then you will have to get food yourself so you have to limit the portion of the food you have to eat. How can you limit the meals of a pregnant woman and the taste bud of a pregnant woman. When it happens like that it is like you have gone into some sort of prison [Surrogate 4]

One surrogate also revealed that:

One day I think I was 6 to 7 months pregnant, and the lady of the house prepared some stew for me and it was really salty and that very day I managed to eat the stew but I could not eat the following day because my blood pressure was already high. I explained to her the stew was salty so I could not eat the food; she did not say anything. I stayed without food that day up to 5pm in the evening [Surrogate 4].

I was supposed to eat three times daily per the contract but the couple I was staying with will serve my breakfast at 10 or 11 am [Surrogate 4].

Psychosocial and emotional issues

Surrogates also reported experiencing psychological problems, emotional problems and health issues that they did not envisage.

The doctor was tracing a case of, I think pre-eclampsia or something, yeah. He said for that one, it’s not safe for me and the baby to be home. I need to be here, so I was admitted for almost a month. For that period. It wasn’t easy… staying at one place, not going anywhere, thinking about my other kids, how they will eat, whether they are going to school and all those things. [Surrogate 1]

Aunty, will you believe me if I say when I carried these triplets for the last 2 months I have not slept. If I sleep on my right the baby lying there will not allow me, if I turn to my left another baby is preventing me and last baby is in my abdomen will not allow me to turn all the time. So, I have to sit up and sit beside the wall and sleep in that position. They claim carrying a baby is the same irrespective of the number but it is a big lie. I did not have stretch marks on my stomach, the 3 children made my load heavy and big and that resulted in the plenty stretch marks. [Surrogate 4]

With someone’s own [child] I am asked to go for a caesarean section and my life will never be the same after that surgery. Since I came home, I have experienced a lot of changes in my health; I now experience a lot of waist pains. [Surrogate 2]

Previously I bath cold water but now without warm water my body itches and if I take this to the hospital, I have to pay the bills myself. I came to help someone but went home with some diseases and the contract will not cater for treating this acquired body itching [Surrogate 2]

Ethical issues from the perspectives of couples

Surrogates are not the only ones who are faced with diverse challenges in surrogacy arrangements. Couples reported that they fear surrogates will default honouring the agreement and would not want to give out the child after delivery or run away with the child.

One of the ethical problems that we normally face is when the woman just decides to, you know, have this affection for a baby that is in. In the beginning the agreement was not so and now changes her mind and just decides to maintain the baby now. Because probably the surrogate has developed love for the baby [Couple 1].

One woman at a point started demanding for monies, and this was when…there was no really laid down legal contract. So, at a point she was demanding more money from the intended parents. To the point that it became an embarrassment or it became a burden. You know, and she was threatening to abort the baby or run away with the baby and all that. [Fertility specialist 1]

Again, couples revealed that apart from worrying about surrogate unwillingness to give out the child after delivery, the emotional and psychological torture they have to endure during fertility treatment ranging from the thought of not succeeding, uncertainty about treatment outcomes, and financial burden and the feeling of being unable to conceive naturally and carry to term.

It takes a big toll on couples going through fertility treatments because looking at the financials, when it comes to treating fertility, everything that goes in the treatment is not hundred percent sure… so it looks like it is a 50:50 chance, you are treating, you are hoping to get a child. So that anxiety alone is something … I mean, such things, only couples seeking for a child really understand especially with the introduction of the IVF. They have to pay for the transplant, it involves a lot. The financial aspect too and two, for them to even have a feeling that they have used fertility treatment before they can even get the baby. Ethically, it is not right for somebody to get to know you were treated before having a baby, it is something else [Couple 1]

Ethical issues from the perspectives of bioethicists

One of the Bioethicists reported that the Ghanaian or international Bioethicists societies do not have a common stand on ethical issues regarding surrogacy practices. They made varied ethical arguments with regard to surrogates in surrogacy arrangements. It was asserted that “when a woman decides to be a surrogate, there are issues that need to be dealt with during the pregnancy. Will she live on her own or with her family? Traditionally you would expect that the intended parent would pay for all the antenatal and pregnancy related issues, but it’s not everything that is payable for. For example, the stresses, you can’t pay for it. The surrogate also has a family, the impact of that pregnancy on her family. If she lives with them, is one, if she leaves them to come and live with the parents or the people seeking the child, that means she’s leaving her family. The emotional anxieties of leaving her children behind cannot be paid for”. One of the Bioethicist argued from a religious point of view that:

How different is that from prostitution? … You are using your body to make money in both cases. Is prostitution not acceptable by religion because of the sex part of it. Okay. So, for others you are carrying a child for another person. If it doesn’t go by sex, is it okay? A man can come and have a child by another woman without his wife, without having sex, is that okay? So, you are with your wife. You don’t want her to bear your child, but you can have a child with a surrogate. There’s no adultery in that because there’s no sex? Is it adultery or not, depending on where people stand, they can tell you, they can find some religious rules or engagement to convince or to try to convince you that when that happens, you have gone outside your marriage to have a child and that is not correct…. you can find situations where some point that religion will not accept it and some will say it’s nothing religious, depending on beliefs [Bioethicist 1]

Ethical questions were raised regarding the financial reward to someone in exchange for carrying a baby and the preparation of the surrogate psychologically before they engage in surrogacy.

Are we buying children through surrogacy? Is it morally right to pay for someone to carry a baby? Is the surrogate doing it altruistically? Does the surrogate understand the implications of being a surrogate? Does the surrogate understand the risks involved in her pregnancy? What counseling do they go through before, during, and after? Does the agreement limit the surrogate’s mother right over her body? [Bioethicist 2]

Issues of autonomy and commodification of the practice were also raised:

There’s no compensation in monetary value that you can place on someone going through caesarean section. So, and in this particular case, it goes back to this issue of autonomy [Bioethicist 2]

The issue of commodification of surrogacy also comes in …commercial surrogacy in particular. Are we buying children through surrogacy and is it morally right to pay for someone to carry a baby. So those issues, I think, and how much premium do you place, you know, how fair is the offer that is given to the surrogate mother [Bioethicist 2]

Ethical issues from the perspectives of lawyers

According to the lawyers, contract law is used to draft agreement in surrogacy arrangements in Ghana. One lawyer revealed that “basically, laws on contract apply to this kind of arrangement and it is acceptable everywhere provided the contract is not one of a master-servant relationship and that both parties understand the terms of the agreement and willingly enter into such contract. International courts will uphold them as legal and lawful” [Lawyer 1]. But they stressed on the fact that the ability of the parties involved especially the surrogate’s ability to understand fully the terms of the contract makes the contract valid or not:

Did the women really understand the contract before going into it. I think the capacity of these women to understand is low and that makes the contract invalid. The other party needs to get someone to explain the contract very well to them at times in the local dialect of the person to make the contract valid... How can you give such a contract to a JSS leaver, and you expect some sort of understanding? [Lawyer 2].

The wide economic status disparity of the people involved in the surrogacy arrangement especially with the contract law agreement exposes the surrogates to exploitations.

The main issues coming out from this kind of arrangement is always the situation where some persons, normally the surrogates, are people who are in a low class, who are not financially stable and these rich couples who are unable to give birth or who choose to go by way of surrogacy, use money to control that contractual relationship where they deny sometimes the surrogate rights and protection under those contracts because they have the money and are able to do whatever they want when it comes to that and sometimes you will find out that they use the money or financials gains to refuse to even abide by the rules of the contract and most times the surrogate is not in the position to take them on for the contract to be fulfilled and all that. [Lawyer 1]

Legal and regulatory framework governing surrogacy practice in Ghana

The lawyers and one of the bioethicist reported that until 2020 when the Registration of Births and Deaths Act 2020 was passed, the Ghanaian legal framework had not recognized surrogacy arrangements in the country. What parties have been using to draft agreements is the contract law.

I will say in the year 2020 the Birth and Death Act was passed and it made some recognition of surrogacy in Ghana. In Ghana, we do not have a substantive law but surrogacy is an ancillary of Act 1027 that I have mentioned. But in the past, there was nothing [Lawyer 2]

So basically, laws on contract apply to this kind of arrangement and it is acceptable everywhere provided the contract is not one of a master-servant relationship and that both parties understand the terms of the agreement and willingly enter into such contract. International courts will uphold them as legal and lawful [lawyer 1]

Lawyer-participants in this study however noted that the strengths of Act 1027 relate to the fact that section 22 recognizes surrogacy practice in Ghana and also addresses issues of parentage:

But in the past, there was nothing about it… so far as there has now been some recognition it gives hope to those practicing surrogacy in Ghana now [Lawyer 2]

Lack of awareness of relevant law

However, data from surrogates, couples, fertility specialists and one bioethicist revealed many parties in the surrogacy business are not aware of Act 1027 of 2020.

There is no law in Ghana [Surrogate 2]

I have not heard of any law on surrogacy in Ghana [Fertility specialist2]

Well, I think what we are using now is based on the UK law so from what I understand since we do not have our law yet, it is based on the UK law. So far, I think its ethically sound by my estimation [Fertility specialist 3]

I actually did not know we have any legal instrument on such a sensitive issue [Couple 1]

We do not have a law on surrogacy; we need a clear legislation (Bioethicist 2)

Inadequacy of the current legal framework

Narratives from the interviews suggested that Act 1027 is inadequate because it only deals with issues on the parentage of the child. The Act is not able to address uncertainties and abuse in surrogacy arrangements. One lawyer reported that the contract agreement that normally happens in surrogacy arrangements is “like a servant -master relationship”.

It is like a servant-master relationship, the agreement in itself [Lawyer 1].

It is a bit tricky because if the surrogate mother is a known mother, then she can decide not to give up the child when the child is born and that will come as a cost to the intended parent. So that is a weakness [Lawyer 2]

If you look at contract law in particular, there are clear provisions in there where the couple will have to give some kind of offer. What do they offer to the surrogate mother and is that offer fair? And when the surrogate mother agrees to that offer, what is their understanding, you know and also even of the implications. [Bioethicist 2]

There’s a lot of uncertainties when it comes to pregnancy. What if the surrogate dies? How is the family going to be compensated? Is all that taken into consideration? And what if the couple changes their minds? Can the surrogate mother keep the child? What if in the course of the pregnancy, the couple divorce or the couple dies and not available to take care of this new child. What would the fertility clinic do? Would they give that child to the family? What if the family says, now the woman who was supposed to take care of the child is gone. What would happen? Would there be an opportunity for the surrogate mother to take that child back? What if the child has some deformity? The current law is not able to address all these uncertainties and a clear legislation is needed [Bioethicist 1]

Discussion

This study is one of the first to explore the socio-ethical and legal issues surrounding surrogacy practice in Ghana. A number of findings have emerged which need further reflection. To begin, the surrogates in this study demonstrated both altruistic and monetary incentives for participating in surrogacy arrangements. Hanafin and colleagues [28] are among the pioneers to provide a more comprehensive explanation of the psychological dynamics affecting the motivations of surrogates. Their investigation showed that American surrogates had one of the following motivations: they wanted to accomplish something significant in their lives; they felt a greater sense of empathy for the childless couple; they enjoyed being pregnant; or they wanted financial rewards. The findings from the current study showed that Ghanaian surrogates shared a common understanding of the social and cultural ramifications of infertile couples and a desire to help them have children in exchange for monetary compensation. The results also showed that surrogates entered into the arrangement due to financial hardship. These results are consistent with Adelakun [29], who asserts that many poor women in developing countries find it difficult to resist the temptation of earning what they may never earn in a lifetime [29].

Although surrogacy potentially helps to address infertility problems in married couples, it is not without ethical challenges. In this study, a number of ethical concerns were raised including informed consent, stigmatization, mistreatment, compensation, and psychological and emotional conflicts. In relation to informed consent, a patient’s right to make medical decisions based on a set of medical facts, free from undue influence or overt coercion, is protected by the ethical principle of informed consent, which also serves as a legal tort’s doctrine [30]. The way informed consent was handled in the surrogate pregnancy serves as a stark reminder of how underappreciated pregnancy complexity is, especially when separated from the legally protected status of motherhood. The proper informed consent process, in which a patient is informed of all potential risks associated with medical procedures, seems not to have been fully followed in this study. For instance, the pressure put on women to have C-sections serves as a prime example of the misalignment of interests [30]. All of these were made possible by the fact that the intended parents tend to have more control over surrogates due to power, economic, and educational imbalances. When surrogacy arrangements are set up in an uninformed society with a weak legal system, the offer is almost always set up like the servant-master relationship. The primary ethical, economic, financial, and legal risks associated with gestational surrogacy are of this nature [31].

Furthermore, many couples entering into surrogacy arrangements faced the ethical dilemma of a surrogate mother refusing to return the child to the intended parents after birth. This fear is indeed support by recent evidence from a systematic review investigating the experiences of surrogates and intended parents of surrogacy arrangement [32]. While some surrogates in the USA, Canada, Israel and Iran did not view the child they had carried as their own because they did not equate the act of gestation to parenthood, several others from Surrogates from the USA, Greece, and Canada reported a few problems with relinquishment. In particular, some surrogates in India made claims on the child because of the labour involved with gestation, while others developed feelings of attachment to the baby when they were required to care for the child after birth [32]. It is therefore critical that future regulatory guidelines address the issue of relinquishment so as to prevent disagreement related to ownership of the babies born from surrogacy arrangements. This is particularly important in the context of increasing use of surrogacy by foreigners in Ghana as noted in a recent study [33].

Another issue is stigma. The practice of surrogacy is subject to stigmatization, particularly against surrogates, because of lack of education about it and its arrangement. In this study, several participants expressed views that suggested that surrogacy is viewed by some segment of society as prostitution and baby-selling. Indeed, some opponents have compared surrogacy to human trafficking, prostitution, and slavery [34–37]. The results from this study affirm the fears of these surrogate in terms of how they will be perceived in the society if it is made public. The fear of stigmatization also forces surrogates to enter into the arrangement covertly and without telling their families. Not telling family about such an important decision further exposes the arrangements to further exploitation.

Furthermore, many surrogates feel exploited or cheated. Without a substantive law governing the practice, surrogates in Ghana felt cheated given the sacrifices and suffering they underwent throughout the entire process. One could argue that because they accepted an offer that was made to them, they should not feel cheated. However, issues with unfair compensation contribute to the practice becoming commodified because surrogates believe fertility clinics and agencies often receive significant sums from intended parents while they only receive a small portion of that sum.

There were also psychosocial and emotional issues. Surrogates displayed conflicted emotions during the surrogacy process when it came to psychosocial and emotional conflict. The results show that the surrogates worried about telling their friends and relatives. They were concerned about pregnancy complications, hospital stays, C-sections, and the postpartum recovery period. Due to the nature of the arrangement, they are forced to feel no emotion for the baby and to be afraid of the baby’s health. Concerned about taking care of their own household and children if complications require hospitalization, some surrogates believed that the intended parents’ silence or anonymity throughout the entire process made the pregnancy journey challenging. This is compounded by mistreatments that some surrogate experience. The findings show that surrogates who were housed faced some difficulties because they were not well cared for. For instance, surrogates were compelled to consume prescribed, pre-prepared, and freezer-stored food as well as specific serving sizes. They felt that their dietary preferences were not respected. Some of the surrogates had contract violations that exposed them to difficult circumstances while they were pregnant. Surrogates regretted their decision to become surrogates and felt unhappy, imprisoned, and guilty about it.

The final issue that emerged from this study is the legal and regulatory framework governing surrogacy in Ghana. Having a precise statutory document that covers the rights and obligations of each actor in the surrogacy agreement lowers exploitation, mistreatment, and abuse. In Ghana, section 22 of the Registration of Births and Deaths Act, 2020 Act 1027, has acknowledged surrogacy arrangements but has been unable to address concerns of exploitation, maltreatment, and abuse. Findings from this study revealed that many people entering into surrogacy arrangement are not even aware of the provisions contained in the Registration of Births and Deaths Act, 2020 Act 1027. The law has been in existence for some three years now but there seems to be lack of public education on it. When a society lacks the education on a statutory law on a sensitive and stigmatized practice, participants in that practice are exposed to exploitation, mistreatment and abuse.

The findings presented and discussed in this paper should be interpreted with certain limitations in mind. First, because of the sensitive nature of the topic, several of the facilities approached refused participation, limiting the study to only two facilities. Linked to this is the limitation that our study did not include couples who actually engaged a surrogate. Thus, the application of the findings of this study beyond the context of this study could be limited. Second, although back-to-back translation was done, some meaning may have been lost in the transcription and translation of some of the interviews that were done in Twi.

Conclusion

Surrogacy arrangements are increasingly being pursued by many couples experiencing infertility in Ghana. However, the findings from this study show that different socio-ethical and legal issues arise in the practice of surrogacy in Ghana. Surrogates are faced with issues of providing proper informed consent in the mist of partial information relating to risks and benefits of surrogacy arrangements. The uncertainties in surrogacy arrangements coupled with a weak legal framework also make it difficult for contracts to address unforeseen issues such as post-delivery complications, emotional and psychosocial conflicts. This is particularly concerning given that foreigners are increasingly seeking to enter into surrogacy arrangements in Ghana. This would suggest a need for urgent and specific policy and/ or legislative reform to provide clear guidance regarding conditions under which both locals and foreigners may enter into surrogacy arrangements and what the responsibilities of each of the parties are.

Given that the high cost of infertility treatment in Ghana complicates care seeking, it is recommended that infertility treatment be incorporated into the National Health scheme. For instance, in Turkey, the state is so much involved in the IVF process so much that the state offers couples three cycles of IVF that they do not pay for. A similar approach could be followed in Ghana so that it could help people with infertility issue to achieve pregnancy.

Also, there is need for sensitization and public education. Specifically, the Ghana Health Service needs to educate the public to see infertility in a positive light so that they do not put a lot of pressure on couples. This sensitization could utilize both traditional and social media platforms to educate the general public on the implications of choosing surrogacy as a treatment option, particularly those who end up being surrogates. Finally, and to address issues of mistreatments, exploitation, adequate compensation, stigmatization and informed consent, the passage of an Assisted Reproductive Technology law for Ghana is recommended. An Assisted Reproductive Technology Law that will cover how fertility clinics should operate and be supervised so that they operate legally and ethically could help protect surrogates and intended parents.

Author contributions

Study conception and design was by Authors R.A and J.G. Recruitment and Data collection was done by Authors R.A and P.S. Data analysis and interpretation was done by Authors R.A, A.D.D and J.G. All Authors reviewed the results and approved the final version of the manuscript.

Funding

The study was funded solely by the authors.

Data availability

All relevant data generated and analysed in the study have been included in this manuscript and added as supplementary material.

Declarations

Ethics approval and consent to participate

Approval was obtained from the 37 Military Hospital Institutional Review Board (37MH-IRB/MP/2022). The study was conducted in accordance with the terms of the Helsinki Declaration, and written informed consent was obtained from each participant.

Consent for publication

All participants gave consent for the study’s findings to be published. All authors also consented to the publication of this manuscript.

Competing interests

The authors declare no competing interests.