By Ninsiima Irene

Introduction

This article is intended to address the definition of surrogacy, surrogacy contract/agreement. An examination of the law in Uganda that regulate surrogacy procedures and what a prospective biological parent should look out for in a surrogacy contract.

What is surrogacy

Surrogacy is when a woman (surrogate mother) carries a baby for a couple who are unable to conceive or carry a child themselves for medical or physical reasons. The intended parent(s) are person or persons who become the legal parent(s) of a child born through surrogacy.

There are two types of surrogacy;

Traditional Surrogacy: This is a pregnancy where the surrogate provides her own egg, which is inseminated with the commissioning parent’s sperm. This can be done using in vitro insemination (IVF) or artificial insemination. In this case, the baby is biologically related to the surrogate (genetic surrogate). A traditional surrogate is the baby’s biological mother because her egg is fertilized using a sperm, either from a prospective biological father or sperm donor. Traditional surrogacy has been regarded as legally risky in jurisdictions with legislation where genetic surrogates may decline to release their babies at birth.

Gestational surrogacy: Also known as host surrogacy is when IVF is used, either with the eggs of the intended mother, or with donor eggs. The surrogate mother therefore does not use her own eggs, and is genetically unrelated to the baby.   Eggs from the mother (or an egg donor), are fertilized with the sperms from the father (or a sperm donor), and the embryo is placed into the uterus of a gestational surrogate. The surrogate then carries the baby until birth. The surrogate does not have any genetic ties to the child because it wasn’t their egg that was used.

What is a surrogacy contract

This is an agreement/legal document that provides for the relationship between the surrogate and the intended parents of the child to be carried, specifying the terms and conditions of the relationship between the parties. Surrogacy arrangements are therefore usually supported by a legal agreement that binds all the parties thereto.

Does the law in Uganda Regulate surrogacy procedures?

Uganda does not have any principal legislation on surrogacy procedures and this delicate area remains unregulated. Substantive rights and obligations of the parties to such a procedure are usually incorporated in a private contract between the parties, which usually seeks to protect, on one hand, the rights of the Surrogate mother and on the other, the rights of the intended parents as well as providing for their respective obligations. Recently, Parliament granted leave to Tororo Woman  member of Parliament to introduce a Private Members Bill on surrogacy procedures ‘The Surrogacy and Assisted Reproductive Technology Bill’.  

The Surrogacy and Assisted Reproductive Technology Bill will make legal provisions for surrogate mothers, prohibition of certain practices in connection with embryos and gametes as well as establishment of a committee under the Uganda Medical and Dental Practitioners Council. The Bill proposes remedies to regulate the environment for couples who are unable to have children owing to infertility, women who want to singularly mother a child as well as couples with issues with genetic make up to have children.

Hon Sarah Opendi observed that biological advancements of surrogacy and fertility treatment have made it possible that any woman who desires to enjoy her God given heritage of child bearing can do so notwithstanding malformation of the womb, recurrent pregnancy loss or repeated In vitro fertilization (IVF) implantation failures. She also noted that there are many IVF clinics operating in Uganda and providing fertility care and surrogacy services, but with no regulation or government supervision to ensure quality service and promote ethical medical conduct. She noted that a legal framework will not only regulate the donors but also the doctors and physicians involved in this which will protect the donors as well as the children born out of these processes.

What should a prospective biological parent look out for in a surrogacy contract?

The answers to the above questions are particularly in relation to gestational surrogacy.

1. In this type of surrogacy, the agreement will usually be made between the surrogate and the prospective parents. The identities of the parties may be disclosed or kept confidential for reasons best known to the parties; as long as such confidentiality is comfortable for the parties and agreed upon by the same parties.
2. The consent of the parties should be catered for and indicated in the contract, the surrogate should be of legal age which is 18 years and above and all parties should have the legal capacity to enter into the contract, thus their capacity to contract should not be affected by age, mental illness or intoxication  and other factors like fraud, misrepresentation, duress or undue influence at the time the contract is made.
3. The surrogate will usually agree to be subjected to full medical examination for physical as well as mental health to establish suitability to carry a healthy pregnancy. This medical examination should rule out any physical, medical/health, mental or genetic condition that may compromise the outcome of the procedure.
4. An understanding by the surrogate mother that her role is to carry a fertilized embryo of which she has no genetic connection whatsoever.
5. The procedures for handing over physical custody to the biological /parents and subsequent documentation of the child’s particulars.
6. Highlights of how the procure will be conducted before fertilization, during fertilization and at birth.
7. The conduct of the surrogate mother before, fertilization and during the pregnancy including attendance to any routine medical examination, antenatal care, etc. and how the biological parents should have access to such information.
8. Regulation of the behavioral practices of the surrogate mother, to avoid any acts or omissions that may compromise the pregnancy for example, engaging in harmful sexual practices, smocking, alcoholism, exhausting travel, harmful employment, exposure to chemicals or other harmful elements, self-prescription, exhausting domestic chores etc.
9. Expenses to be involved in the process and who is to bear the cost of what. The contractual consideration should also not be disregarded, bearing in mind that the surrogate, like any other pregnant mother would consequently have to change her schedule of work or even make adjustment in employment to take good care of the pregnancy.

Disclaimer: This information has been designed to help you understand some of the legal issues relating to surrogacy. However, this does not replace seeking your own independent legal advice which we strongly advise that you do before proceeding with surrogacy treatments