Lawyer calls for major revisions to Ghana’s Assisted Reproductive Technology Bill

Legal practitioner, Christian Lebrecht Malm-Hesse has called for substantial revisions to Ghana’s proposed Assisted Reproductive Technology (ART) Bill, 2024, warning that gaps in the draft legislation could create legal uncertainty and undermine the protection of patients, surrogates, donors and children born through assisted reproduction.

Speaking at the Annual General Meeting (AGM) of the Fertility Society of Ghana, on the topic: “Legal pitfalls of ART Bill”, Mr Malm-Hesse outlined a series of recommendations to strengthen the proposed legislation before its enactment.

Among his key recommendations were the completion of all statutory definitions, stronger informed-consent requirements, clear limits on compensation for surrogates and gamete donors, the establishment of an effective regulatory authority, and the introduction of clearly defined offences and penalties for unlawful practices.

He also called for explicit provisions governing the enforceability of surrogacy agreements, clearer eligibility criteria for intended parents, improved monitoring of fertility centres and a centralised registry for assisted reproductive procedures and donor-conceived individuals.

Drawing comparisons with the United Kingdom’s surrogacy laws and Canada’s Assisted Human Reproduction Act, he argued that Ghana must establish a legal framework that balances medical innovation with ethical responsibility, patient autonomy and the welfare of children.

Strengthening the Bill before enactment

Mr Malm-Hesse who is also the Senior Associate of Ecam Law Consult, described the proposed ART Bill as an important step towards regulating fertility treatment, surrogacy, gamete donation and other forms of third-party reproduction in Ghana.

However, he maintained that several provisions require clarification to ensure that the law is practical, enforceable and consistent with established principles of medical law.

One of his principal concerns relates to Section 74, which contains definitions of key terms used throughout the draft.

He observed that several definitions remain incomplete, potentially leaving courts, healthcare professionals and regulators without clear guidance on their interpretation.

He urged the drafters to complete every definition and ensure consistency throughout the legislation.

On informed consent, he recommended that the Bill specify the minimum information healthcare providers must give patients before undertaking reproductive procedures.

Such information should include the nature of the procedure, its risks and benefits, reasonable alternatives and an assessment of the patient's understanding.

He also called for safeguards to protect patients who are blind or unable to read or write, including appropriate procedures for explaining consent documents and documenting their consent.

Mr Malm-Hesse further recommended a dedicated enforcement framework, with clearly defined inspection powers, procedures for investigating complaints and proportionate penalties for violations.

In his view, a law that imposes obligations without effective enforcement mechanisms risks becoming ineffective in practice.

Regulating surrogacy and donor compensation

A major focus of the address was the distinction between altruistic surrogacy and commercial reproductive arrangements.

Mr Malm-Hesse expressed concern that provisions governing donor recruitment and compensation do not adequately distinguish legitimate reimbursement from commercial exploitation.

Section 38 of the draft Bill provides for ART centres to establish networks for recruiting gamete and embryo donors, while other provisions address compensation for surrogates and donors.

He argued that these provisions require clearer limits to prevent financial incentives from undermining the intended safeguards.

Drawing on the United Kingdom’s Surrogacy Arrangements Act 1985 and Human Fertilisation and Embryology Act 2008, he proposed that Ghana consider allowing appropriately regulated non-profit organisations to facilitate altruistic arrangements, subject to strict legal requirements.

He also referred to Canada’s Assisted Human Reproduction Act, which prohibits specified payments to surrogates and gamete donors while allowing certain reimbursements under prescribed conditions.

According to Mr Malm-Hesse, Ghana should adopt clear rules distinguishing permitted expense reimbursement from commercial payments, supported by documentation and independent oversight.

He maintained that the Bill should also identify prohibited reproductive practices more precisely, including human cloning and other procedures raising significant ethical and safety concerns.

Any restrictions, he stressed, should be clearly drafted to distinguish prohibited activities from legitimate medical treatment.

Consent and the protection of patients

Mr Malm-Hesse identified informed consent as another area requiring substantial improvement.

Although Sections 10 to 20 address consent, he argued that some provisions do not adequately define the information patients must receive or the circumstances in which treatment may proceed without prior written consent.

He particularly questioned the provision permitting medical examination where it cannot be postponed on medical grounds, arguing that this circumstance should not automatically dispense with consent if the patient or an appropriate legally authorised representative can reasonably be consulted.

He called for the Bill to distinguish genuine emergencies from situations in which healthcare providers have sufficient time to obtain valid consent.

“The proposed legislation should also provide clear requirements for consent relating to the storage, use, importation, exportation and disclosure of information concerning gametes and embryos.

These safeguards, would protect patient autonomy while reducing the risk of disputes and potential liability for healthcare professionals and institutions," he argued .

Legal uncertainty surrounding surrogacy agreements

Another concern raised at the AGM was the absence of sufficiently clear provisions governing disputes between surrogates and intended parents.

Mr Malm-Hesse argued that the draft Bill should expressly state the legal status of surrogacy agreements and explain what happens when a party fails to fulfil an arrangement before the birth of a child or before a parental order is made.

He pointed to the United Kingdom’s legal framework, under which surrogacy arrangements are generally unenforceable under Section 1A of the Surrogacy Arrangements Act 1985.

He urged Ghana’s legislators to make a clear choice on the enforceability of such agreements and establish appropriate procedures for resolving disputes while protecting the rights of the surrogate, intended parents and child.

He also questioned Section 48(1), which limits eligibility for surrogacy to a “couple”, without expressly defining the term. He recommended that the Bill clarify who qualifies for surrogacy and address whether single persons may access the service.

In addition, he called for greater consistency between the proposed Bill and the Registration of Births and Deaths Act, 2020 (Act 1027), particularly regarding the registration of births resulting from assisted reproduction.

A stronger regulator and better record-keeping

Mr Malm-Hesse further warned that “effective regulation would require a clearly established statutory authority with defined powers, responsibilities and accountability mechanisms”.

He observed that the draft Bill refers to a Board responsible for various regulatory functions but does not adequately establish its composition, membership qualifications, tenure or quorum.

He recommended that the legislation expressly establish the Board and provide for appropriate inspection, monitoring and enforcement powers.

A centralised registry, he added, would help authorities monitor assisted reproductive procedures, improve traceability, support investigations into alleged malpractice and preserve relevant information about donor conception.

He cited the United Kingdom’s Human Fertilisation and Embryology Authority as an example of a specialist regulatory body overseeing fertility treatment and related activities.

The Bill, he argued, should also establish clear offences and penalties for unlawful practices, including unauthorised procedures and prohibited commercial activities, with sanctions proportionate to the seriousness of the conduct.

Mr Malm-Hesse’s call for reform follows more than a decade of advocacy for the regulation of surrogacy, gamete donation and third-party reproduction in Ghana.

Mr Malm-Hesse commended the Fertility Society of Ghana for its longstanding advocacy in this area and acknowledged its efforts to promote the regulation of reproductive services.