MUSING THE ENFORCEABILITY OF SURROGACY CONTRACTS by Horace Odoi

The term ‘contract’ is often used to refer to an agreement, consisting of the exchange of promises, which is recognized by the law as giving rise to enforceable rights and obligations.

Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman, the surrogate mother, agrees to bear a child for another person or persons, who will become the child’s parent(s) after birth. The surrogacy arrangement is therefore for all intents and purposes, a contract.

Different reasons are proffered for the relevance and demand for surrogacy arrangements. Firstly, people may seek a surrogacy arrangement when pregnancy is medically impossible, when pregnancy risks are too dangerous for the intended mother, or when a single man or a male couple wish to have a child. Surrogacy in the context of commercial surrogacy seems to have lucrative value. For example, in the US, gestational carriers receive financial compensation for their commitment, time, and risks involved. On average, surrogates can expect to receive between $40,000 and $50,000 for their willingness to carry a child.

Again, most surrogates look back at their experience with a sense of fulfillment and achievement. Surrogate mothers are usually women who are caring and compassionate with a strong urge to help those in need. Making it possible for those who struggle with infertility to have a baby and complete their family can be a life-changing experience, resulting in happiness and satisfaction for everyone involved.

Surrogacy does not come without cons. While there are great benefits for gestational surrogates to give the gift of life to hopeful couples, there are also some risks and disadvantages to consider. Surrogacy firstly may be physically and emotionally demanding. Potential surrogates are required to take a variety of medical tests and undergo screenings to ensure they are fit to carry a child to term. There may also be health risks and the process is sometimes lengthy.

There are two main kinds of surrogacy arrangements; the traditional surrogate, where a woman gets artificially inseminated with the father’s sperm. The woman then carries the baby and delivers it for another woman and her partner to raise.

A traditional surrogate is the baby’s biological mother. That’s because it was their egg that was fertilized by the father’s sperm. Donor sperm can also be used.

There are also gestational surrogates. A technique called “in vitro fertilization” (IVF) now makes it possible to gather eggs from the mother, fertilize them with sperm from the father, and place the embryo into the uterus of a gestational surrogate.

The surrogate then carries the baby until birth. They don’t have any genetic ties to the child because it wasn’t their egg that was used.

Quite often a surrogacy agency is the method used to arrange a gestational surrogate. The stats show that there are about 100 agencies now operating in the U.S. They act as go-betweens. 

The criteria for choosing potential surrogates in the United States are whether the woman is of at least 21 years of age, whether she has already given birth to at least one healthy baby, and therefore appreciate firsthand the medical risks of pregnancy and childbirth and the emotional issues of bonding with a newborn. The surrogacy agencies also do a psychological screening of the potential surrogate by a mental health professional to uncover any issues with giving up the baby after birth. The whole process then culminates in the signing of a contract about the roles and responsibilities of the agency and the surrogate in the pregnancy, such as prenatal care and agreeing to give you the baby after birth.

In Ghana, there is not as yet an Act of Parliament on matters relating to surrogacy and surrogacy arrangements as other countries have. However, there are laws generally regarding contracts.

Article 11 of the 1992 Constitution of the Republic of Ghana provides thus:

(1) The laws of Ghana shall comprise-

(a) this Constitution;

(b) enactments made by or under the authority of the Parliament

established by this Constitution;

(c) any Orders, Rules, and Regulations made by any person or

authority under a power conferred by this Constitution.

(d) the existing law; and

(e) the common law.

(2) The common law of Ghana shall comprise the rules of law generally

known as the common law, the rules generally known as the doctrines of

equity and the rules of customary law including those determined by the

Superior Court of Judicature.

(3) For  this article, “customary law” means the rules of

law, which by custom are applicable to particular communities in Ghana.

(4) The existing law shall, except as otherwise provided in clause (1) of

this article, comprise the written and unwritten laws of Ghana as they

existed immediately before the coming into force of this Constitution, and

any Act, Decree, law, or statutory instrument issued or made before that

date, which is to come into force on or after that date.

(5) Subject to the provisions of this Constitution, the existing law shall not

be affected by the coming into force of this Constitution.

(6) The existing law shall be construed with any modifications,

adaptations, qualifications, and exceptions necessary to bring it into

conformity with the provisions of this Constitution, or

otherwise to give effect to, or enable effect to be given to, any changes

effected by this Constitution.

(7) Any Order, Rule, or Regulation made by a person or authority under a

power conferred by this Constitution or any other law shall –

(a) be laid before Parliament;

(b) be published in the Gazette on the day it is laid before

Parliament; and

(c) come into force at the expiration of twenty-one sitting days

after being so laid unless Parliament, before the expiration of the

twenty-one days annuls the Order, Rule, or Regulation by the votes

of not less than two-thirds of all the members of Parliament.

At the moment, the Contracts Act, 1960, Act 25 along with the incorporated principles of the common law and equity provide the body of rules that govern contracts in Ghana. The Contracts Act, 1960, Act 25 recognizes both oral and written contracts. 

Generally, the following elements are the traditional rules of analysis on the creation of a valid and enforceable contract in Ghana: an offer and acceptance, an intention to create legal relations, a capacity to contract, and consideration. 

The Supreme Court of Ghana in the case of NTHC Ltd v Antwi defined an offer to be ‘an indication by words or conduct by an offeror that the or she is prepared to be bound by a contract in the terms expressed in the offer if the offeree communicates to the offeror his or her acceptance of those terms’ 

To constitute a contract then, an offer must be accepted by the party to whom it was made. Acceptance is thus simply defined as a final and unqualified assent to the terms stated in an offer.

An approach of a surrogate by a couple or a surrogacy agency to the effect of carrying out a surrogacy becomes a contract then if the potential surrogate expresses her consent to the terms stated in the offer by said couple or surrogacy agency.

 

 

The second requirement of an intention to create legal relations is to the effect that where parties enter into an agreement on any subject matter including one like surrogacy arrangements, and the parties state expressly that the agreement is not to be binding or legally enforceable by either of the parties, the Courts based on the time-honored principle of freedom of contract will abide by their intentions as expressed and hold the agreement to be unenforceable. A legally unenforceable contract numbs rights or obligations and quietly ties the hands of the Court and thus potential surrogates, agencies and interested parties must make clear their intentions in the drafting of a surrogacy contract.

Another very important element in the valid and enforceable contract is the matter of capacity to contract. Here age, soundness of mind, and even sobriety are very relevant considerations. On age particularly, the issue is quite murky. The Contracts Act 1960, Act 25 is silent on the age of majority. 

Under the Ghanaian law, the 1992 Constitution, the Children’s Act 1998, Act 560 put the age of majority at 18 years of age. The Companies Act, 2019, Act 992 defines an infant as a natural person under the age of 18 years. All these age stipulations, however, are for each particular statute in consideration and not a blanket age criterion for all laws in Ghana.

In the absence of a definition by a statute on contracts, the age of 21 years adopted for use under the common law applies. This means that the parties to a surrogacy contract, be it the potential surrogate, the couple seeking to enter into the contract, or the agency’s officers who enter into the contract with the potential surrogate must at least be of 21 years of age.  This is of necessity because a minor will not be held liable for a contract unless the contract was one for necessaries which may include food, clothing, medical services, etc, a beneficial contract of service like an apprenticeship or internship, a voidable contract which is a contract where the minor acquires an interest in some subject matter of a permanent nature like a lease contract or a contract for the acquisition of shares.

On mental competence as a matter of contractual capacity, if a contract is entered into by a mentally incompetent person who at the time of entering the contract was incapable of understanding the nature of the contract due to the mental disability, such a contract is voidable at the instance of the mentally incompetent party if he can show that the other party knew or ought to have known of his mental disability at the time of contracting. The law however makes for a little crevice for liability of the mentally incompetent party if the contract was made by him during a lucid interval.

Also, the contractual capacity of an intoxicated person is said to be the same as that of a mentally incompetent person. If the person, at the time of making the contract was so intoxicated as to not know the consequences of his actions and evidence led to show that the other party knew of the intoxication, there is no liability on the intoxicated party. 

The final leg of a valid binding contract is the concept of consideration. Consideration may consist of the performance of an act, a counter promise, or a forbearance requested or given in exchange for the other party’s promise. Thus, the scenario of a surrogacy agency promising $50,000 in exchange for the surrogate carrying the child will meet the requirements of consideration.

 

Consideration need not be adequate. It only needs to be sufficient. This means the Court will not ordinarily seek to assess the value of the one party’s promise and compare it to the value of the act or promise given by the other party. Hence, a surrogate requesting as consideration the 20,000 cedi tuition of her older son being paid in exchange for carrying a baby will be deemed sufficient even though the average cost in the market for a surrogate may be 100,000 cedis.

The law also recognizes forbearance as good consideration. Forbearance simply means a refrain from the doing of an act for which one has a right to do.  

It must be noted that while the establishment of these elements will create a valid, binding, and enforceable contract, all contracts may be set aside on the basis of factors vitiating the apparent consent of one or both parties to the contract. Circumstances such as mistake, misrepresentation, duress and undue influence, unconscionable nature of the contract, illegality or contrariness to public policy, etc. are factors that the Court may look at in deciding the enforceability of a surrogacy contract.

While no law in Ghana makes surrogacy contracts illegal and thus unenforceable, surrogacy contracts may come under the umbrella of contracts uberrimae fidei, the kinds of contracts with the characteristic of having one party alone in possession of all the material facts affecting the rights of the parties under the contract. The law in these cases places more burden on a particular party to disclose material facts known to him. Surrogacy agencies may be treated as such. 

There is growing concern that needy, illiterate, and gullible young women may be induced by misrepresentations into entering unconscionable contracts. The law provides some protection for these women and contracts may be set aside in the event of such.

All agreements have a point of discharge, the point at which both parties to the contract may be freed from their obligations to each other under the contract. The parties may discharge their agreement by subsequent agreement to extinguish the rights and obligations under an earlier surrogacy contract, perform the contract by fulfilling the obligations owed to each other under the contract. There can be instances of a discharge of the contract also by breach or frustration.

A practical instance of a discharge by the performance of a surrogacy contract will be the full healthy delivery of a baby boy who is willingly handed over to the couple unable to have children, with whom the surrogate has a contract after the receipt of say, $12,000 while that of breach will be an instance where a couple reneges on their promise to pay the surrogate mother an amount of 30,000 cedis upon the delivery of their baby.

Discharge by frustration contemplates instances where through no fault of the parties, unforeseen contingencies or events occur which make the performance of the contract physically impossible or which may radically change the nature of the obligations under the contract. Mere inconvenience or hardship may not be sufficient to found frustration, however. In the context of a surrogacy contract, a stillborn baby may be considered a frustrating event. A law passed to make surrogacy illegal or criminal may also be deemed frustrating even after parties have entered into a surrogacy contract. 

Breach of a contract occurs where due to an event, one party releases or discharges the other party from his duty to perform his obligations under the contract. The breach may be anticipatory or fundamental. A breach is anticipatory where a party by his words or conduct indicates that he does not intend to perform his obligations under the contract before performance is due or before the contract has been fully performed.

For example, a potential surrogate after entering into a written surrogacy contract and being artificially inseminated by the other parties’ sperm clearly making known her intention to abort the baby and not carry through with the obligations under the surrogacy contract will constitute an anticipatory breach. 

A breach is also said to be fundamental if having regard to the contract as a whole, the promise which has been violated is of relatively major importance to the contract. Where for instance, the consideration of tuition for her older son as a term of the surrogacy contract is not performed after full delivery of a healthy baby to the other party, a fundamental breach of the surrogacy contract can be said to have occurred.

The innocent party may have options in the event of a breach; an acceptance of the repudiation of the contract and treatment of the contract as discharged, and affirmation of the contract by treating the contract as being in force until the dates or time for performance or the innocent party can affirm the contract, perform his or her obligations under the contract and sue for payment.

While the issues surrounding contracts necessitate different kinds of remedy, an action in Court by an innocent party could seek the remedies of specific performance of the surrogacy contract, rectification of a contract, and injunctions.