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The Human Assisted Reproductive Technology Bill 2023: Balancing Ethics, Regulation and Access to Reproductive Healthcare in Uganda

Introduction

In Uganda, as in many parts of the world, the pursuit of parenthood is a personal and often challenging journey. For individuals and couples facing infertility or other reproductive health issues, the advent of human assisted reproductive technology (HART) has offered newfound hope and possibilities. However, with these advancements come ethical, legal and social considerations that demand careful regulation and oversight.

In response to the growing demand for HART services and the need to protect the rights and well-being of all the parties involved, Uganda has introduced the Human Assisted Reproductive Technology Bill, 2023. This proposed legislation aims to establish a legal framework for the practice of HART, encompassing procedures such as invitro fertilization (IVF), intrauterine insemination (IUI), and surrogacy.

The introduction of this bill is fundamental in Uganda’s reproductive healthcare landscape. It signals government’s recognition of the importance of regulating HART practices to ensure ethical conduct, patient safety, and adherence to established standards of care. As Uganda prepares to pilot the difficulties of HART regulation, it is imperative to undertake a comprehensive analysis of the proposed bill, examining its key provisions and implications.

Analysis of the key provisions of Human Assisted Reproductive Technology Bill, 2023

Application

Section 1 specifies the scope of individuals to whom the law applies. It provides that the Act applies to a man and woman who jointly seek to use human assisted reproductive technology to obtain a child; and a man and woman, where either the man or woman or both the man and woman, suffer primary or secondary infertility or health related challenges which affect the man or woman’s ability to reproduce.

Upon closer examination, the wording of this clause could potentially be construed as limiting the application of reproductive technology services to only cases where both a man and woman are involved, either as a couple seeking treatment together or where one or both partners suffer from infertility. To ensure inclusivity and account for the diverse range of individuals who may seek the services, including single individuals, the provision would benefit from clarification or amendment. One approach could involve revising the language to broaden the scope of applicability to all adults, regardless of marital status and regardless of whether or not, they have infertility challenges. This would ensure that single individuals are not inadvertently excluded from accessing the services under the law.

Administration

Part II of the Bill designates the Medical and Dental Practitioners Council as the administering body responsible for regulation, implementation and oversight of HART practices in Uganda. This therefore leverages existing expertise and infrastructure to streamline oversight efforts. The Council is tasked with recommending health units for designation as fertility centers, recommending banks for approval, enforcing standards, conducting inspections, and maintaining a register for human assisted reproductive technology. The tasks stress the role of the council in promoting patient safety, quality of care, and ethical conduct within the HART sector. Overall, these clauses reflect a proactive approach to regulating reproductive technology practices.

Fertility Centres and Banks

Part III of the bill is aimed at ensuring the systematic designation, accreditation, and oversight of fertility centers and banks. A fertility centre means a health unit designated to offer human assisted reproductive technology services.  A bank means sperm, oocyte or embryo bank used for the storage and cryopreservation of sperm, oocyte and embryo.

Sections 5 to 10 outline procedures for designating a health unit as a fertility center. A health unit applies to the Council, which assesses compliance before recommending designation to the Minister. The Minister may issue a designation certificate within 21 days or provide reasons for refusal. Designated centers must be annually accredited by the Minister based on the Council’s recommendation. Annual accreditation of centres is a prudent measure as it will ensure ongoing compliance with regulatory standards and promote continuous improvement in the quality of fertility services in the Country. The Minister, upon Council recommendation, can suspend or revoke a center’s designation for non-compliance; the regulations will prescribe the grounds for such action.

Additionally, the Bill mandates the establishment of a bank within fertility centers, subject to Ministerial approval based on Council recommendation and compliance with prescribed conditions. The Minister may issue or refuse a certificate of approval for the bank, with reasons provided for refusal. Similar to the designation process, the Minister, in consultation with the Council, can suspend or revoke a bank’s approval based on prescribed grounds.

We propose that the approval of banks be issued on annual basis. This is intended to ensure that the bank continuously meets requisite standards to operate.

Provision of Human Assisted Reproductive Technology services

Part of the Bill articulates a comprehensive framework governing assisted reproductive services, delineating specific regulations and restrictions. To begin with, only registered medical practitioners certified by the council to undertake HART services can provide the said services, and these must be provided within a fertility center. Before providing the services, a medical practitioner must offer patients information on available services, potential outcomes, facilities, confidentiality policies, consent procedures, complaint handling, fees, and other relevant details. However, under clause (h) of section 12 “any other relevant information” is vague and subject to misinterpretation or abuse as it gives undefined discretion to the medical officer. We propose that it should be deleted.

In addition to the information provided to the intending parent to use human-assisted reproductive technology services, such decision to use HART should be made in the presence of an independent person, and the intending person or surrogate must receive independent advice on the terms and conditions of surrogacy.

A medical examination by the practitioner is mandatory before providing HART services. If a genetic disease is found in a potential gamete donor, harvesting of gamete is prohibited. Harvesting gametes from persons under the age of eighteen is prohibited. Fertility centers must maintain a comprehensive register of all information collected. Section 15 allows donation of gametes or embryos, with agreements required between donors and recipients. Conditions include consent, terms for usage of the gamete or embryo, storage duration, recipient limits, posthumous use, and any other mutually agreed conditions.

Registered medical practitioners will collect detailed information from donors, including age, identity, health history, and professional qualifications, to assess suitability; and recipients or persons intending to use the donated gamete or embryo will be informed of this information.

Gametes or embryos harvested or received by a fertility centre must be stored in a designated bank within the centre, with an agreement for storage between center(s), the donor, and recipient. Costs of storage are borne by the parties involved. The Council shall be mandated to prescribe clinical guidelines for storage of gamete or embryo.

It is imperative to note that advances in reproductive technologies could raise concerns about the potential for eugenic tendencies. While the technologies hold promise for preventing genetic diseases and improving health outcomes, they also raise ethical questions about the potential misuse or abuse of genetic interventions for eugenic purpose. The bill should explicitly forbid individuals from engaging in genetic manipulation and address the ethical concerns linked to such practices.

Surrogacy

The bill defines surrogacy to mean a practice where a woman carries and gives birth to a child for another person. Under part V, the bill ensures legal and ethical conduct of surrogacy arrangements. To begin with, it grants intending parents the right to use surrogacy if they suffer from infertility or health challenges affecting their reproduction. An intending parent as interpreted by the bill means a man and woman who enter into a surrogacy agreement with a woman (surrogate mother) for her to carry and give birth to a child for that man and woman.

The bill only allows intending parents suffering from primary or secondary infertility, or the intending parent suffering health challenges that affect the intending parent’s ability to reproduce to use a surrogate; it excludes other people without fertility issues from accessing it. Although limiting surrogacy to individuals with fertility issues or health challenges that affect reproduction may be a way of prioritizing those who have a medical need for assisted reproduction, it excludes others who may desire surrogacy for other reasons such as single individuals, those who have ethical or moral objection to other reproductive methods among others. Opening surrogacy to everyone could promote reproductive autonomy and choice, recognize the diversity of families and relationships, and address issues of equality and inclusivity.

Therefore the definition of “intending parent” as being exclusively a man and woman is problematic and could be seen as discriminatory and exclusionary. Firstly, it denies single individuals the opportunity to pursue surrogacy as a means of becoming parents. Secondly, this restriction is discriminatory as it bases access to reproductive rights on marital status. This narrow definition undermines reproductive freedom as it restricts access to surrogacy based on factors unrelated to an individual’s ability or suitability to become a parent. A more holistic approach to the definition of intending parents is needed, one that is inclusive of all individuals regardless of marital status or relationship status.

Surrogacy agreement

Intending parents must enter into a written surrogacy agreement with the surrogate mother or authorize a fertility center to do so on their behalf, prior to the provision of any reproductive technology services. Section 22 provides that a surrogate mother must be 18 and above. It is our opinion that the decision to become a surrogate should be made by a person who is fully informed, emotionally prepared, and legally competent. Although an 18 years old person is competent to enter into a surrogacy agreement, that person is barely an adult, and the majority of 18 years have never even had a child, based on the above, The surrogate mother should at least be 21 years and above and has given birth to at least to one child to minimize complications and also show that the surrogate mother understands what being pregnant entails.

Section 23(5), on surrogacy agreement, requires a registered medical practitioner to in as much as possible, take into account the terms and conditions of the surrogacy agreement. We are of the view that the medical officer should not have the discretion to determine what provisions of the agreement to take into account. The wide discretion may be subject to abuse.

A surrogacy agreement typically delineates the rights and responsibilities of the intending parents and the surrogate mother. It covers financial arrangements like compensation for the surrogate mother, reimbursement of expenses related to the surrogacy process, and any other financial obligations agreed upon by the parties; It also specifies medical procedures involved in the surrogacy process, such as screening, fertility treatments, IVF, embryo transfer, prenatal care, and childbirth, as well as arrangements for medical insurance coverage and health care decisions; it addresses establishment of parental rights and legal parentage, including procedures for the legal recognition of the intending parents as the child’s legal parents after birth; It includes provisions regarding confidentiality and privacy; it also outlines procedures for terminating the agreement in case of unforeseen circumstances or disagreements between the parties; legal compliance; among others. Parties should seek independent legal advice and carefully review the agreement to ensure clarity and protection of their rights throughout the surrogacy process.

Section 25 on medical care of a surrogate mother, provides that an intending parent shall provide medical care for a surrogate mother during surrogacy. The medical care should be extended for period outside surrogacy in unfortunate situations where the surrogate mother gets into medical complication as a result of surrogacy arrangement.

Parentage in surrogacy and assisted reproductive technology

Section 24 recognizes intending parents as the legal parents of the child born through surrogacy. The surrogate mother is not considered the child’s parent. Intending parents must appoint a guardian in the surrogacy agreement to take parental responsibilities of the child if the intending parent dies before the child’s birth. Additionally, Clause 19 specifies that regardless of whether a man and woman use their own gametes or embryos or those of another person, they will be recognized as the parents of the resulting child. Therefore the provisions have the effect of stipulating that the surrogate mother relinquishes all parental rights at the birth of the child. This indeed will reduce the potential for legal and moral claims over the child.

Parentage defines who is considered the legal parent of a child and outlines the associated rights and duties, such as custody, support, and heritage. Traditionally, parentage has been determined based on biological ties or legal recognition through birth or adoption. On the other hand, the surrogate mother, despite carrying and giving birth to the child, is not considered the child’s legal parent under the provisions. This is because the surrogacy agreement typically outlines the intention of the parties involved, specifying that the surrogate mother is acting as a gestational carrier and not as the intended parent of the child. The provisions thus reflect a legal framework that prioritizes the intentions and agreements of the parties involved in the surrogacy arrangement.

In many jurisdictions, including those with clear legal frameworks for surrogacy such as the United Kingdom, United States, Thailand, among others, the intended parents are typically recognized as the legal parents of the child from the moment of birth, even if they are not biologically related to the child. However, this legal recognition of parentage is often facilitated through pre-birth or post-birth orders granted by court, it is this parental order that transfers legal parenthood from the surrogate to the intended parents. Subsequently, the intended parents’ names are listed on the child’s birth certificate.

While the bill doesn’t expressly articulate the different rights of children born out of assisted reproductive technology, it appears to ensure that those children acquire the same rights and protection as those born through natural conception. However, should the HART bill pass, Section 31 of the Registration of Persons Act 2015 (RPA) would need to be aligned to reflect this position as to matters of who does the registration of the child. In the context of the Bill, which stipulates that intending parents are recognized as the legal parents of a child born through surrogacy, the RPA may need to be updated or interpreted in conjunction with the surrogacy provisions of the bill. Therefore, the duty to notify the registration officer of the birth would fall on the intended parents, rather than on the surrogate.

Prohibited activities

Registered medical practitioners are prohibited from using a person’s genetic material without their consent or implanting human admixed embryos or other non-human embryos into a woman’s uterus. Advertising for surrogacy is prohibited. The effect of these prohibitions is that any contravention of them will potentially result in a colossal fine or even life imprisonment.

Conclusion

The proposed Human Assisted Reproductive Technology Bill stands as a landmark effort to balance the ethical, regulatory, and access considerations in the realm of reproductive technology and healthcare. Surrogacy and other reproductive technology practices are here to stay and the least we can do is regulate them.Top of Form

Prepared by

Resty Nalwanga
Resty is an associate in the law firm of Angualia Busiku & Co. Advocates (www.lawyers-uganda.com). She holds Bachelor of Laws degree of Kampala International University (first class) and Post Graduate Diploma in Legal practice from Law Development Centre (first class).
Email address: nalwanga360@gmail.com

Angualia Daniel
Daniel is the managing partner in the law firm of Angualia Busiku & Co. Advocates. He holds Bachelors of laws degree from Makerere University (2007), Post graduate diploma in legal practice from Law Development Centre (2008), Master of Laws (2011), Qualifications in Construction Law and International commercial Arbitration, Member Chartered Institute of Arbitrators (UK).
Email address: dangualia@yahoo.com, angualia@lawyers-uganda.com

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The Applicability Of The Welfare Principle In Child Adoption Matters In Uganda

1.0 Introduction

Adoption is the creation of a parent child relationship by Judicial Order between two parties who are unrelated creating a lifelong relationship of parenthood between the child and adoptive parent.[1] Before the order is made, court must be satisfied that the adoptive parent is suitable and committed to being a parent of the child and that the child is available for adoption. Since the adoption order creates lifelong relationship, the best interest of the child is of paramount.[2]  This article discusses the application of the welfare principle in child adoption matters and the considerations for granting Adoption in Uganda.

1.1 Adoption and the Welfare Principle in the Children Act

Section 48 of the Children Act as Amended is to the effect that the Court shall, before making an adoption order be satisfied that it is in the interest of the welfare of the child, due consideration being given to his or her age of understanding.[3] Section 3(1) 1thereof further emphasizes that the welfare of the child shall be of paramount consideration whenever the state, a court, a tribunal, a local authority or any person determines the question in respect to the upbringing of the child, the administration of a child’s property, or the application of any income arising from that administration.[4]Further Section 3(3) of the Act  emphasizes that in determining any question relating to circumstances set out in the Act, the court shall have regard in particular to:-

  • The ascertainable wishes and feelings of the child concerned,  considered in the light of his or her age and understanding;
  • The child’s physical, emotional and educational needs;
  • The likely effect in any changes in the child’s circumstances;
  • The child’s age, sex, background and any circumstances relevant in the matter;
  • Any harm that the child has suffered or is at the risk of suffering;
  • Where relevant, the capacity of the child’s parents, guardians or others involved in the care of the child in meeting his or her needs.

In his decision of David Twesigye (an infant)[5] Justice Chigamoy Owiny Dollo ( As He then was) while considering an application for guardianship gave some useful insight to the welfare Principle. He held that:-

“…while the primary right of a child is to grow up under the tutelage of his or her parents, or parent, for the obvious reasons of emotional attachment; if it is shown to the satisfaction of a competent authority, and in this case the court, that vesting legal guardianship of the child in the applicants, it would serve the best interest of the child, then it would be proper for this court to make an order removing such child from the parent. Court has to weigh the emotional loss of staying with one’s parents against the opportunities that would come with the relocation away from the hands of the parents…….”

In determining Adoption Matters Court in particular considers the ascertainable wishes and feelings of the child in light of his or her age. The High court in the case of Re. Victoria Babirye Namutosi,[6] noted that,

“As a general rule, the social worker is required to work for eventual reunification of a child with his/her family or community if possible. This approach must therefore be carried out within a framework of planning for permanence in the child’s life which must be balanced with understanding the need for stability of the child’s life.”

The decision in J Vrs C[7] emphasizes the welfare principle as it was held that

“…more than that, the child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. [Welfare] connotes a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child’s welfare as that term in now understood … [it is] the paramount consideration because it rules upon or determines the course to be followed.

However in applying the welfare principle, courts are to consider individual assessment of each case but not to entirely rely on precedent.[8] Further according to Bromley “…in applying the welfare principle, the Court must act in the child’s best interests…it should be appreciated that the Judge is not dealing with what is ideal for the child but simply what is the best that can be done in the circumstances…”[9] this manifest the rationale of the welfare principle in children matters and in adoption in particular.

1.2 Legal Requirement for Adoption

The Children Act Cap 59 provides for conditions that the adoptive parent must fulfill before he/she can qualify to adopt a Ugandan child.

Section 45 (1) of the Children Act as amended provides that an adoption order can be granted to a sole applicant or jointly where the applicant or at least one of them has attained 25 years and is at least 21 years older than the child.

Section 45(4) of the Act as Amended by sec 13 of the 2016 Amendment provides that the application shall not be considered unless the petitioner has fostered the child for a period not less than 12 months under the supervision of a Probation and Social welfare officer.

Under Section 2 of the Act, the term foster care placement is defined to be “. placement of a child with a person who is not his or her parent or relative and who is willing to undertake the care and maintenance of the child”. A foster parent means “a person not being the biological mother or father or relative of the child who assumes parental responsibility of the child by way of a care order. On the other hand, parental responsibility means …” all rights, duties, powers responsibilities and authority which by law a parent of a child has in relation to the child”.

An important policy emanating from the above provisions is the realization that foster parents and children can form a close relationship which should be recognized and protected by the law in force.  The common law position is that a parent cannot transfer or surrender parental responsibility by private agreement or arrangement exceptions being when a child is entrusted for example, into a school, to child minders or a recognized institution.[10]

This fostering is not limited to physical fostering but also “constructive fostering” Justice Mukiibi in Adoption Cause No. 10/2017 in the Matter of Innocent Turyahabwe (Child) held on page 8 that-:

“…….the requirement for fostering a child for one year does not solely mean having physical custody of the child. It includes any conscious effort made by prospective petitioners to assist/support a child through any practical arrangement. Support may be channeled through a parent or other relative of the child, or any other person having physical custody of the child who has a special arrangement with the prospective petitioners for receiving and administering such support. Should there be need for a term of this art, this may be called “constructive fostering”.

However, Section 14of the Children (Amendment) Act 9 2016 amended section 45(4) by permits Court in exceptional circumstances to waive any of the specified requirements. In the case of Re Victoria Babirye Namutosi,[11] Wherein, the petitioner had not fostered the child for the required 12 months yet the child needed urgent medical attention and court held that; “Fostering the child for one year is a temporary condition that cannot be used to frustrate the process that leads to permanence in a child’s life.”

In regards to staying in Uganda, in the matter of  Saunders Terry Tobin and Semujju Cromweel Clifford (Minors)[12] Court observed that the requirement for an applicant to have stayed in Uganda for a period of one year was meant to ensure that all applicants acclimatize to our culture and way of life and also bond with their charges. This would entail that the applicant has first understood the culture and way of life of the child to a sufficient degree. That knowledge and experience would empower him to prepare the child for the foreign culture and way of life which is quite different from what they have been accustomed to.[13]

Section 46 (c) (d) and (e) set down more conditions that should be fulfilled by the petitioner as follows;

  • doesn’t have a criminal record
  • has a recommendation concerning his or her suitability to adopt a child from his or her country’s probation and welfare officer or other competent authority
  • And should have satisfied the court that his or her country of origin will respect and recognize the adoption order.

Under Section 47(1) of the Children Act, the consent of the child’s parent is necessary for the adoption order to be made if the parents are known, but this requirement may be dispensed with under Section 47(2) of the Act if the parents are incapable of giving it. 

1.3 Conclusion

It is important to check if you meet the requirements for adoption before petitioning court for an adoption order. Since adoption creates a lifelong relationship of parenthood between the child and adoptive parent, courts always ensure that adoption matters are decided in total consideration of the welfare principle and in the best interest of the child.

Prepared by

Alituha Jacob

[1] IN THE MATTER OF A PETITION FOR THE ADOPTION OF EDSON MUGAGA (A CHILD) BY ANASTASIOS MOUTAFIS AND GEORGIA NELLI GIANNIOTI, HCT-14-FD-AD-0015-2019

[2] ibid

[3] Section 48 of the Children Act as Amended

[4] Section 3 of the Children Act as Amended

[5] HCMA No. 0004 of 2008 (at page 4, 5 and 6)

[6] Adoption Cause No. 9 of 2017)

[7] (1970) AC 668 at page 710-711

[8] S.M. Cretney and J.M. Masson, Principles of Family Law ( London: Sweet and Maxwell 6th Edition) 2008 at page 723

[9] Bromley’s Family Law, 8th Edition at page 338.

[10] Jonathan Herring in Family Law 2nd Ed. At page 651.

[11] Adoption Cause No. 9 of 2017

[12] Misc cause No. 10/2017

[13] In The Matter Of Nakitende Aisha Jenny Namugeri (An Infant), Adoption Cause Nos. 016 And 017 Of 2018

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