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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Legal Protection Available For Traditional Medicine Brands In Uganda
Introduction
It is estimated that more than 60% of Uganda’s population depends on traditional medicine because it is accessible, affordable and culturally familiar. Herbal medicine has long been used to manage a range of common conditions, including malaria, digestive and respiratory problems, toothaches, skin diseases, childbirth complications among others. Many communities in Uganda relied on traditional knowledge passed down through generations to diagnose illnesses and prepare remedies from natural ingredients. Although many of these treatments lacked scientific validation, they were trusted by many Ugandans and remain popular today. We saw this during the COVID-19 pandemic, where many people turned to herbal remedies as a means of treatment over conventional medicine.
In recent years, there has been a noticeable shift towards herbal products, with consumers increasingly opting for natural alternatives free from harmful chemicals and additives. This global trend has even seen major brands capitalizing on the rising demand for natural and herbal ingredients, For instance, even large brands like Colgate are introducing herbal versions of their products, such as Colgate Herbal, Colgate Charcoal, etc to cater to this growing preference.
However, in Uganda, herbal medicine has traditionally been rooted more in cultural practices than commercial ventures. Many herbalists pay minimal attention to modernizing or improving their processes particularly in terms of production standards and product presentation. Their herbal products are often sold unbranded or poorly packaged, lacking the professional presentation that could attract a wider market. This limits the commercial potential of herbal medicines, making it difficult for them to compete with more polished, commercially available products. Due to the lack of regulation, the sector has unfortunately been tainted by some phony practitioners who have exploited the field and given it a bad name. This has discouraged more professional involvement, further hindering the industry’s potential growth.
As Uganda begins to recognize and regulate traditional medicine with the passing of the Traditional and Complementary Medicines Act of 2019, traditional medicine practitioners and stakeholders have the opportunity to protect and commercialize their innovations. The Act encourages Traditional medicine practitioners to assert ownership of their products and practices through Intellectual Property (IP). The Act has also since established a Council known as the National Council of Traditional and Complementary Medicine Practitioners with representatives from different stakeholders including the Association of Traditional Medicine Practitioners. The Council is mandated to control and regulate the practice of traditional and complementary medicine, to register and license practitioners and to provide for related matters. As part of ongoing efforts to standardize and promote traditional medicine, the National Drug Authority (NDA), through its mandate and as a broader initiative to ensure the safety, regulation, and accessibility of traditional medicine to the public, recently registered over 300 herbal medicines. It is therefore important for herbalists to understand how IP laws can provide additional protection for their knowledge, practices, and products.
Intellectual Property and Traditional Medicine
Intellectual property rights are essential for protecting innovations in various sectors, and traditional medicine is no exception. Herbalists possess valuable knowledge of what is good for treating which condition. The information exists within communities or families, but does not really travel further. It often remains confined within them. A key reason for this is that many herbalists, particularly those interested in commercializing their practice, are reluctant to share their knowledge. They fear that researchers or others may exploit their insights without proper recognition or compensation. As a result, herbalists often choose to keep their knowledge private, stifling both individual growth and the development of the herbal medicine industry as a whole.
Introducing herbalists to the concept of intellectual property could help alleviate these fears. Through proper IP protections, such as patents, trademarks, geographical indications, or trade secrets, herbalists can confidently share their knowledge, collaborate with researchers, and benefit from commercial opportunities without the risk of exploitation. With increasing global interest in natural and indigenous remedies, it is more important than ever for Ugandan herbal practitioners to protect their medicinal knowledge and products from exploitation or unauthorized use. There are various IP tools available that can help herbalists achieve this:
This can be done through registration of a trademark. A trademark is a symbol, logo, name, or design that distinguishes your products or services from others in the marketplace. For traditional medicine practitioners, creating a brand around your products is key to building trust and recognition. With a trademark, you can ensure that your name or product is not used by others without your permission. For instance, a herbal formula that is associated with your clinic or business can be trademarked under a unique name, which allows you to maintain exclusive rights to use that name. This not only protects your business from imitation but also adds value to your brand as consumers learn to trust and rely on your products. As your business grows, you can use your trademark to expand into new markets, for example, if you want to sell your herbal products in other regions or countries, having a registered trademark makes it easier to protect your brand globally.
This can be by way of a patent. If you have developed a new formulation or process for creating traditional medicine that meets the patent requirements of novelty, inventiveness, and industrial applicability, you may be eligible to patent it. A patent gives you the exclusive right to produce, use, and sell that formulation for a certain period, usually 20 years. For example, if you create a new extraction method for a medicinal plant that enhances its effectiveness, a patent could help you protect that method, preventing others from copying your process without authorization. This protection is particularly important for preventing pharmaceutical companies or foreign entities from exploiting your knowledge.
This may be done through Geographical indications (GIs) offer a powerful way to protect traditional knowledge that is tied to a specific location. A GI is used to signify that a product has qualities, reputation, or characteristics specific to a certain area. For example, a particular herbal remedy that is traditionally produced in a specific region of Uganda can be protected by a GI, ensuring that only products from that region or association can use that designation. GIs are especially useful for protecting the collective knowledge of communities and can prevent the misappropriation of traditional remedies by outsiders. Additionally, they help promote regional economic development by giving value to indigenous practices.
Another tool available for protecting traditional medicine and keeping the herbalist’s formulas confidential is Trade Secret protection. If your practice or product involves a unique method or ingredient that is not disclosed publicly, you may choose to keep it as a trade secret. This ensures that the knowledge is shared only within trusted circles or under non-disclosure agreements (NDAs). However, it is important to have appropriate legal agreements in place, such as confidentiality agreements with employees or partners, to safeguard your trade secrets effectively.
How can we be of help?
While these IP protections can be valuable, each form of protection comes with its own eligibility requirements, application processes, and costs. We can help you:
Requirements for Acquiring a Mining License/ Mineral Right in Uganda
1.1 Introduction
Mining in Uganda is regulated by the mining and minerals Act, 2022 and the Mining (Licensing) Regulations, 2019.
The Act prohibits any person from conducting prospecting, exploration, mining, processing, refining or other beneficiation operation under Uganda’s jurisdiction without an authorisation, licence, lease, permit or approval in accordance with the Act, the National Environment Act,2019 or any other written law.
The right to explore for, retain, mine and trade in minerals may be acquired and held under and in accordance with a mineral right granted by the Act, notwithstanding any right of ownership or otherwise which any person may possess over the land on which the mineral right is granted.
The Act defines a “mineral right” to mean a right to prospect, explore or mine for minerals under a prospecting licence, an exploration licence, a retention licence, a large scale mining licence, a medium scale mining licence, small scale mining licence or an artisanal mining licence. The types of mineral rights that may be granted under the Act;
(a) prospecting licence;
(b) exploration licence;
(c) retention licence;
(d) large scale mining licence;
(e) medium scale mining licence;
(f) small scale mining licence; and
(g) artisanal mining licence.
The Act prohibits any person from prospecting, exploring for, retaining, mining, processing, refining, smelting, fabricating or disposing of any mineral in Uganda save for persons who acquiring a license.
1.2 Who May Acquire A Mining Licence/Mineral Right In Uganda?
A mining licence in Uganda may be granted to;
It should be noted that the Act restricts granting of mineral rights or licence to Non Ugandans and entities not incorporated or registered in Uganda.
1.3 Requirements For Attaining A Mineral Right/ Mining Licence
Prospecting licence;
The Act defines “prospecting” to means intentionally searching for minerals and mineral deposits and includes any operations to test the mineral-bearing qualities of any area.
Section 35 of the Act provides that an application for a prospecting licence shall be made to the Minister responsible for mineral development in a manner prescribed by regulations.
The Application shall contain;
A prospecting licence once issued is valid for a period of one year and is not renewable.
Exploration licence
The Act defines the term “explore” to mean to define the extent and determine the economic value of a mineral deposit and includes activities undertaken in order to identify, and determine the presence of minerals or mineral deposits and to assess the extent and economic value of a mineral deposit.
an application for an exploration licence shall be made to the Minister responsible for mineral development in a manner prescribed by regulations.
The application is accompanied by;
The exploration licence shall be valid for a period not exceeding four years from the date of grant of the exploration licence and it may be renewed for a single period not exceeding three years.
Retention Licence (Rl)
This Licence is given to the holder of an Exploration Licence who has identified a mineral deposit but the deposit cannot be immediately developed due to factors beyond reasonable control of the Licence holder, which are of a temporary nature.
Requirements For Application For A Retention Licence
Large Scale Mining Licence
The Act defines “large scale mining” as the intentional mining of minerals in mechanised operations, involving the excavation of large surface pits, sinking of shafts, driving of adits or other underground openings with limitations to the extent of the mining operation dictated by the extent of the ore body and the capital investment Exceeding nineteen million, four hundred and ten thousand (19,410,000) Currency Points;
An application for a large scale mining licence shall be made to the Minister in a manner prescribed by regulations. The Licence is granted for large mining operations in an area not more than 50km2 requiring a capital investment threshold exceeding nineteen million, four hundred and ten thousand (19,410,000) currency points (1currency point = UGX 20,000)
Requirements For Application For A Large Scale Mining Licence
Medium Scale Mining Licence (Mml)
This Licences issued for mining operations in an area not more than 50km2 requiring a capital investment threshold from fifty-eight thousand, two hundred and thirty (58,230) currency points to nineteen million, four hundred and ten thousand (19,410,000) currency points (1currency point = UGX 20,000)
Requirements For Application For A Medium Scale Mining Licence
Small Scale Mining Licence (Sml)
This is granted for mining operations in an area not more than 10km2 requiring a capital investment threshold exceeding nineteen thousand four hundred and ten (19,410) currency points to nine hundred seventy thousand and five hundred (970,500) currency points (1currency point = UGX 20,000.
Requirements For Application For A Small Scale Mining Licence
Artisanal Mining Licence
This issued for mining operations not exceeding nineteen thousand four hundred and ten (19,410) currency points (1cp = UGX 20,000).
Requirements For Application For An Artisanal Mining Licence
Conclusion;
it is important to note that a holder of a mineral right/mining licence as discussed above has the right to sell any minerals acquired by him or her under the Act without obtaining a mineral dealer’s licence.
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
ZACHARY JOHN OLUM VERSUS BONGOMIN JOHN ODORA and 4 OTHERS
Brand Protection and the Imperative of Trademark Registration in Uganda and Beyond.
In the fast-paced realm of global commerce, where competition is fierce and consumer choices abound, a brand is the silent identity of a business and its most valuable asset. Yet, despite its undeniable importance, many businesses overlook the critical need to protect their brand. This failure or negligence to protect a business brand can have far reaching consequences. Not only does it rapidly diminish the brand’s value, unauthorized use of brand elements like trademarks, logos etc dilutes its uniqueness and can lead to confusion among customers. As a result the brand may lose its distinctiveness and competitive edge in the market place.
So what exactly does it mean to protect your business brand? At its core, brand protection is about safeguarding the integrity and uniqueness of a business brand identity. This mainly involves legally registering trademarks and or other intellectual property assets to prevent unauthorized use or infringement, and taking quick action to address any form of infringement. Therefore, central to this venture is the establishment and protection of trademarks, those invaluable symbols, words, or names that encapsulate a brand’s character.
A trademark is a distinctive symbol, word, sign, logo, phrase or design or a combination of those, capable of being represented graphically, that distinguishes the products or services of a business from those of competitors. In the dynamic world of commerce, businesses rely on their distinct names, words, or symbols to stand out in the crowd. Trademark protection is a vital tool in ensuring the integrity of these brand identifiers. Simply put, once a business’s distinctive identifier is trademarked or registered, the owner is granted exclusive rights, and others are prohibited from using it to distinguish their own good or services. Registered trademarks are also easy to enforce as they usually carry a belief of ownership.
Trademark registration in Uganda is overseen by Uganda Registration Service Bureau (URSB). The first step in the process is to conduct a preliminary search from the URSB database to ensure that the proposed trademark is not similar or identical to an existing one. If the search does not reveal any conflicting trademarks, you can then file your application. The application must include a clear representation of the trademark and a list of goods or services to be covered by the trademark. URSB will then examine the application to ensure that it complies with the requirements of the law. It will also determine whether the trademark can be registered or if it infringes upon any existing trademarks. Once the application passes the examination, it is published in the Uganda Gazette in order to give third parties the opportunity to challenge the registration of the mark, within a period of 60 days from the date of publication. If no objection is filed in relation to the mark, or if any objection is resolved in favor of the applicant, the mark is registered and the applicant is granted a certificate of registration.
Enlisting the expertise of a trademark agent is highly recommended for businesses and individuals who desire to undertake the trademark registration process in Uganda. This is because the process is meticulous and requires strict adherence to specific legal requirements. Without proper knowledge and experience, applicants attempting to file independently may encounter numerous challenges and pitfalls along the way. A qualified agent will ensure all the necessary requirements are met accurately and efficiently and thereby mitigate the likelihood and risk of encountering rejections, objections and delays from URSB. You will also have the assurance of ongoing support and maintenance for your trademark portfolio.
Once a trademark has successfully been registered in Uganda, the registration certificate will only confer territorial protection of the mark or the rights of the proprietor. Simply put, imagine you have a bakery (business) called “Sweet Delights” based in Uganda, and you have trademarked your brand name and logo with URSB, you’re doing well and you want to expand you business to neighboring Kenya or even beyond. You start advertising your treats in Kenya using your trademarked name and logo. Now, let’s say there’s another bakery in Kenya, unaware of your existence, and they decide to use the same name “Sweet Delights” for their business. Since you have not registered your trademark in Kenya, you cannot legally stop them from using the same name, even though you were using it first in Uganda. Therefore the territorial nature of trademark protection means that trademark proprietor’s rights are limited to the country where the trademark is registered. Without protection in Kenya, a trademark proprietor in Uganda cannot enforce their rights there, leaving their brand vulnerable to infringement in that territory.
In today’s interconnected world, businesses often expand beyond their home border to tap into new markets and opportunities; the above scenario poses significant limitation which emphasizes the importance of extraterritorial trademark protection, especially in regions like Africa where market integration is on the rise. One of the primary hurdles faced by businesses operating in Africa is the cost associated with securing trademark protection in multiple countries. The expense and administrative burden of individual registrations across numerous jurisdictions can be prohibitive, particularly for small and medium sized enterprises (SMEs). As a result, many businesses may forego comprehensive protection, leaving their trademarks vulnerable to infringement in untapped markets.
However, the solution to overcome limitations of territorial trademark protection is to pursue extraterritorial protection through regional or international trademark registration systems. In the case of African countries, businesses can opt for regional frameworks such as those provided by the African Regional intellectual property Organization (ARIPO) or the Organization Africanne de la Propriate Intellectuelle (OAPI). These registration systems allow businesses to obtain protection in multiple member states through a single application. Instead of going to each country separately to protect your trademark, you can just go under the ARIPO or OAPI umbrella once, and it covers you in all the designated countries it oversees. So if you have a bakery in Uganda and you want to expand it to Kenya or Tanzania and beyond, you can register your brand with ARIPO, and it confers a protective shield over your brand in all those countries at once. This approach not only reduces administrative burdens but also provides a cost-effective way of protecting intellectual property rights across diverse markets.
ARIPO’s current membership includes: Uganda, Kenya, Rwanda, Tanzania, Botswana, Eswatini (Swaziland), Gambia, Ghana, Lesotho, Liberia, Malawi, Mozambique, Namibia, Sao Tome and Principe, Sierra Leone, Somalia, Sudan, Zambia, Zimbabwe and Mauritius. Whereas OAPI’s membership includes: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Mali, Mauritius, Niger, Senegal and Togo.
ARIPO trademarks are registered on behalf of the contracting states of the Banjul Protocol on marks which was adopted in 1993. Under the protocol, a trademark applicant can designate any one of the Banjul protocol contracting states in which the applicant wishes the trademark to be protected by filing only one application. This means that before filing application the business must identify the ARIPO member states where they intend to conduct commercial activities such as selling or advertising their goods or services and designate those states within the application. Note that one may designate any or all the member states.
One must conduct a trademark search before filing with ARIPO. You can think of it as doing due diligence in the intellectual property realm. This allows the applicant to evaluate the landscape of existing marks within ARIPO’s jurisdiction, and identifying any conflicting mark or prior rights hence making informed decisions about the viability of the proposed mark. A trademark application under the protocol can be made directly through ARIPO’s online portal or by submitting a physical application to the ARIPO headquarters in Harare Zimbabwe. Upon receiving the application, ARIPO conducts an examination to ensure that it complies with the necessary requirements. Once the application passes the examination stage, ARIPO publishes the mark in the ARIPO Gazette, giving third parties an opportunity to oppose the registration if they believe it infringes on their rights. This opposition period typically lasts for 90 days upon which oppositions, if any, are reviewed. If no oppositions are filed, or if oppositions are successfully overcome, ARIPO proceeds with registration of the mark, and the trademark owner is issued a certificate or registration, confirming their exclusive rights to use the trademark in the designated ARIPO member states. The registration details are published in the gazette, to provide public notice of the trademark’s registration and the rights associated with it. An ARIPO trademark is valid for an initial period of 10 years, after which it must be renewed to maintain protection.
An application may be filed by an individual or a business, and this can be done in person or through an authorized trademark agent. An authorized agent is a trademark representative or legal practitioner who is duly recognized by the national intellectual property office of the contracting state as having the right to represent the applicant. Working with a trademark agent experienced in ARIPO filings can streamline the application process. They understand the requirements, paperwork, and procedures involved. A trademark agent will provide guidance on trademark selection, registration strategy, and potential conflicts. They will ensure your application meets all ARIPO’s requirements and this reduces the risk of rejection and delays in the registration process. We strongly advise enlisting a qualified trademark agent’s specialist advice and guidance for the ARIPO registration process.
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:-
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;
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
Duty of Government to Provide Decent Housing for Police Officers in Uganda
Legal Aspects Of a Surrogacy Contract in Uganda
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.
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
Implications Of Striking Off Non-Compliant Companies For Failure to file Annual Returns with the Registrar of companies
Prepapred By
Resty Nalwanga
Angualia Daniel
Company annual returns
When a company is formed, it has obligations imposed on it among which includes updating its file at the company registry (URSB), with the changes that have taken place in the company during the year. This statutory obligation is what is known as Filing of company annual returns. Annual return means the return or a yearly statement required to be filed to the Registrar of companies which highlights the information about the company’s various aspects pertaining to its composition, activities, and financial position.
According to section 132 of the Companies Act 2012 (‘the Act’), company which has a share capital must file annual returns with the registrar, at least once in every year stating information such as, the registered office of the company; members and debenture holders; shares and debentures; indebtedness of the company; past and present members; directors and secretary; if the register of members or debenture holders is kept elsewhere than the registered office of the company, the address of the place where it is kept.
Section 133 of the Act requires a company which has no share capital to file annual returns with registrar, at least once in every calendar year, stating information such as; the registered office of the company; if the register of members, or of debenture holders, or any duplicate of any such register, is kept elsewhere than the registered office of the company, the address of where it is kept; particulars of the directors and the secretary; and to what extent the company has complied with the principles of corporate governance.
Annual returns must be completed within 42 days after the annual general meeting for the year.
Non compliance of a company with the above requirements attracts a penalty of UGX500, 000 on both the company and every officer in default.
Only a dormant company may be exempted from filing annual returns for a grace period of 12 months. However, the directors must have notified the registrar within 15 working days from the date of the resolution for dormancy.
Striking-off a company from the register
This is a form of enforcement mechanism used by the Registrar of Companies to compel entities to comply with statutory obligations. If the company is carrying on business for five years without updating its file as discussed above, the registrar is entitled to assume that the company does not exist. However, beyond this assumption, the law prescribes that the registrar notifies the company to file a statement of solvency and notice to show cause why the company should be maintained on the register. Under Section 134(5) and (6), if the company does not respond to the notice or show cause why it should not be struck off the register, the registrar is brought to the conclusion that the company merely exists on paper but is not in operation and therefore issues a notice of striking the company off the register in the gazette and newspaper of wide circulation.
What next for a company struck off the register for non-compliance?
Striking off a company in effect places a temporary hold on a company to transact until certain conditions are met or until an inconsistency is resolved. Striking off a company as distinguished from dissolution merely puts a company on a suspense register for a specified period of time in order to enable it comply. If a company that has been struck off has a running license, the license also ceases to exist.
Whereas there is a bit of a grey area regarding legal provision on the procedure of restoration of a company that has been struck off the register, the Registrar of companies has powers to amend the register.
Therefore, a company that has been struck off for non compliance may be restored after complying with filing annual returns. A company or creditors of the company may apply to have the company restored or reinstated on the register. The application has to be made within a reasonable time, generally within 6 months from the date of striking off.
If the company still fails to comply within 12 months upon being struck off, it is exposed to de-registration.
Conclusion
The process of striking off a company for non compliance with filing annual returns serves as a critical mechanism to uphold the integrity of the corporate landscape. The enforcement of timely and accurate submission of annual returns is not merely a formality; rather, it safeguards transparency, accountability and economic stability. The repercussions of non compliance extend beyond the confines of the company itself. Stakeholders and creditors rely on up-to-date information to make informed decisions about the company.
Buying Gold in Uganda; avoid a scam transaction. Effective duediligence investigation that you should do before wiring that moneyin a gold purchase transaction.
Are you buying or planning to buy gold in Uganda? There is need for effective due diligence investigation before wiring that money in a gold purchase transaction to avoid scam transactions and loosing your millions of dollars. Preliminary investigation will guide you on whether you are dealing with a genuine gold dealer licensed to deal in gold in Uganda; whether the shipping agent has the requisite licenses; whether the relevant documents, licenses, certificates involved in the transactions are genuine or authentic among others.
Majority of the time, buyers consult lawyers for investigations after being scammed and loosing large sums of money. Its highly recommended to do due diligence investigation to avoid being scammed. The law in Uganda regulates dealing in minerals like gold and a purchaser will be caught by the common law rule of “buyer be ware” Thus a buyer should investigate first using publically available information and should as well ask the seller to fully disclose material information in the sellers possession or known to the seller at the time of the transaction. A prospective buyer should investigate the particulars of the seller; whether the seller is a legal person and has the requisite licenses and certificates among others. The services of a lawyer experienced in such transaction is very important before any payment is exchanged.
A buyer should have a gold purchase agreement which clearly describes the parties, the shipping agents if any, the obligations of the seller; the time lines for delivery; recovery of purchase price in case of failure to deliver among others. Given the large sums of money usually involved in the gold purchase transactions, it is always prudent for a buyer to seek experienced and reliable legal representation in the transaction from an attorney in Uganda well versed in gold purchase due diligence investigations. Purchaser should consider escrow services and or collateral arrangements to secure down payments.