Isn’t it the right time Uganda enacts law regulating surrogacy?

By: Brighten Abaho

Despite the growing acceptance of surrogacy practice in Uganda for the last decade, there is little development in the legislative, institutional and policy framework on the practice.
Whereas the surrogacy practice has a constitutional basis, there isn’t a substantive legislative and policy frameworks which materialize the enjoyment of constitutional rights. In-vitro fertilization, popularly known as the process for getting test tube babies, has become a reality in Uganda.

One of the most interesting components of this science is the possibility of one woman carrying another woman’s pregnancy. This has for a very long time raised legal and ethical questions that remain unanswered by present-day Ugandan laws.

The practice has survived at the mercy of social engineering and a self-regulation model designed by key stakeholders. However the jurisprudence emanating from other jurisdictions remains amorphous as the self-regulation model has failed to address and curb the rampant emergence of illegal surrogacies.

This explains the move by Tororo Woman MP, Sarah Opendi who sought leave of Parliament to introduce a Private Member’s bill entitled The Surrogacy and Assisted Reproductive Technology Bill. The former junior health minister told the House that although different mechanisms of getting children
through the participation of other partners are already happening in the country; the field remains unregulated and as thus raises a lot of questions.

Surrogacy is where a woman (called the birth mother) receives the baby (egg that has been fertilized) into her womb to carry and deliver. Sometimes, a male’s sperm is put directly into the woman and she carries the baby who is born after the 9 months. This means that such a male does not need to sleep
with the woman himself.

In Uganda, the surrogacy practice currently operates under the shadow of the Children’s Act and the Registration of Persons Act but both laws don’t adequately recognize surrogacy arrangements nor do they confer special rights and duties to parties in a surrogacy arrangement.

The underlying themes in these two Acts only represent the orthodox way of conception and they do not reflect contemporary conceptions through assisted reproductive processes. The Children’s Act which is a major legislation on children does not provide for surrogacy, neither does it
do so expressly or by implication. In addition, the Act restricts the definition of a mother or father of a child to mean the genetic mother or father, this leaves out the children born of surrogate parents.

The Registration of Persons Act operates under the assumption that the legal mother of a child is a woman who carries the pregnancy and bears the child. It does not highlight and recognize the advent of the new technological advancements which leaves a gap to handle and cater for the necessities of a modern day Ugandan society where assisted reproduction and surrogacy has become the order of the day.

It should be noted that in surrogacy arrangements just like any other contracts, there are some necessary elements that are essential for such a contract to be legally binding on both parties. Such elements include consent, consideration among others.

In the best interest of the child and for a better contractual relationship between parties; it is important for the law to clearly provide for definition and terms of consent as one of the most important elements of surrogacy contract to be legally valid and that such consent should be between married couples.
In this case the rationale of consent is to protect the dignity of the woman as provided for under both international and domestic laws.

With the absence of the law regulating assisted reproduction and surrogacy, money has become the subject matter leaving out the medical, emotional and physical repercussions that may arise after the enforceable consent. Thus the mushrooming Assisted Reproductive Health Clinics if not regulated by the law may use gametes that may endanger the surrogate mother and the resultant child.

The absence of the law on surrogacy and assisted reproduction has created an inequitable position of a surrogate mother as it is a known fact that most surrogates get into contract through intercession of middlemen, most of whom are doctors and are deployed to ensure that a proper match is found and
tied down to an agreement.

The primary desire of the middlemen is to ensure that a contract has been successfully completed which puts the middlemen against the surrogate mother by ensuring that they work towards relinquishment of the child rather than the best interest of the surrogate.

The self-regulation model remains ineffective to protect and promote the constitutional rights of parties to the surrogacy arrangement. In this case the commissioning parents cannot directly acquire legal parenthood without doing child adoption as provided for under the Children’s Act.

Uganda needs to borrow a leaf from countries such as Kenya and South Africa whose surrogacy regimes are backed by concrete legislative, institutional and policy framework that offers maximum regulation of assisted reproductive facilities and protection of rights of the parties to surrogacy arrangement
irrespective of their sexual orientation.

The South African legislative framework on surrogacy draws a lot of lessons that Uganda should learn from. For example the South African law draws a distinction between full and partial surrogacy by granting more rights to the genetic surrogate mother. Furthermore courts act as screening devices on
approval of surrogacy arrangements which has professionalized the practices and offers optimal certainty on the transfer of legal parenthood from the surrogate mother to the commissioning parents.

With the absence of the law on surrogacy and assisted reproduction there is need to conduct a civic education on legal rights attached to Assisted Reproduction and Assisted Reproductive Technology (ART) with specific emphasis on surrogacy arrangements. This is because many members of the society do not know the meaning of surrogacy arrangements, let alone the rights they should demand under the arrangements. Thus conducting such will increase public awareness and enable the citizens to participate when they are fully aware of their rights.

That the regulatory body being Ministry of Health comes up with guidelines to govern the conduct and capacity of professionals who supervise and are engaged surrogacy processes. This will help to deal with the risks and illegal practices.

That the regulatory framework with absence of the law addresses the fundamental requirements and conditions for surrogacy and assisted reproduction agreements.