Modernity has altered the customary law understanding of family within the Ghanaian community. Parliamentary laws and court decisions have aligned with modern standards by setting apart the concepts of family membership and succession rights.
The adjustments are, however, a work in progress. The law in Ghana is yet to govern the topic of donor-assisted reproduction sufficiently.
Consequently, the deoxyribonucleic acid (known as DNA for short) examination is now an effective tool for determining the parentage of a child and, in effect, family membership.
This article will answer the central question: how have donor-assisted reproductive activities diminished the effectiveness of DNA examination?
And are there sufficient legal safeguards to champion the family membership and succession rights of surrogate children?
Standard for enrolment in the Ghanaian customary law family
Family members are identified through blood tracing that establishes a uterine or spermatozoan link. This has the semblance of the legal jus sanguines principle adopted for attaining citizenship.
There are matrilineal and patrilineal family systems in Ghana. Membership of a matrilineal family requires a tracing exercise to the womb of an ancestress. A member must have been born by a female in the family.
The Ghanaian court in the 1965 case of Dotwaah and Another v Afriyie gave a sketch of the family composition. The court listed the following:
“Now the immediate family of an Akan person, male or female, consists of his or her mother, the mother’s brothers and sisters, the children of female descendants of his mother; in short, a person’s immediate maternal family consists of the descendants of his or her maternal grandmother in the direct female line;
“The next family nearest to him will be the descendants of the maternal great-grandmother in the direct female line, so that if the descendants of the grandmother are extinct, the immediate family will be the descendants of the great-grand-aunts, the next will be the descendants of the great-great-grandmother and so on, until the widest possible circle of relations is encompassed, which often means the clan.”
For the patrilineal family, a person must trace his linkage to the sperm of an ancestor. As far back as 1925, the Gold Coast court in Dugbatey v Nanor described the family as follows:
“In the patrilineal system, the family which succeeds, as we have discussed earlier, is the group traced from a male ancestor in the direct male line. A man’s children, male and female, his paternal brothers and sisters, children of his paternal brothers, his paternal grandfather, paternal brothers and sisters of the grandfather and the descendants of the descendants of the paternal uncles in the direct male line, all belong to a man’s family.”
The requirement for blood linkage is so essential that a person is classified as a stranger if he fails to provide proper evidence of his source, whether matrilineal and patrilineal. Modernity has not destroyed this arrangement.
Legislation, being the Courts Act 1993, makes provision for the usage of customary law in transactional and succession matters. Additionally, in the recent Supreme Court case of Samuel Kormla Agbale vrs Ekuvor Agbale Ladzagla, Justice Samuel Adibu Asiedu emphatically confirmed the division of Ghanaian societies into matrilineal and patrilineal societies, and the requirement of blood lineage tracing for membership attainment and rights.
Standard for succession in Ghana
In the past, a person earned succession rights from his customary family. A matrilineal family member inherited from the properties of other matrilineal members. The members did not ordinarily earn personal rights in the properties. The properties were vested in the family as a corporate sole owner and members had user rights in the properties.
The traditional system has been defaced by legislative inroads considering the high probability of injustice. For instance, in a 1959 court case entituled Quartey v Martey, the court ruled that properties acquired in marriage belonged to the husband irrespective of the wife’s contribution and support. Upon the death of the husband, his family inherited the properties for generations. Cases of such quality reflected some unpopular customs, hence parliamentary reactions.
If a person makes a valid will before his death, the will determines his property sharing. Every property owner has a right to manage and share his properties. Therefore, customary law family membership cannot clog the rights of beneficiaries to inherit properties in a will.
No one needs a family identification card to enjoy testamentary grants. The customary law family only comes in if the deceased person specifically gives properties to the family. Therefore, the family has little opportunity to challenge specific grants to children even if the membership status of the child is in contest.
With respect to intestate deaths, the standard has been set by the Intestate Succession Law 1985 (PNDC Law 111). The sharing regime in the act transcends family membership. Non-family members such as spouses also get a share in the properties.
Children get their portions even if they do not share the same family society with the deceased person. The customary family also gets a share in the statute for its members.
Broad perspective of a child for inheritance
Under both testate and intestate inheritance regimes, a child is defined from three different perspectives, videt licet: the biological child, the adopted child and the factual child. The biological child must share the same blood with the parents.
There is, however, a twist. The genetic linkage is between parent and child and not necessarily a tracing process to a historical ancestor or ancestress. So, a child born to parents from a matrilineal society will still be considered as the child of the parents even though, under customary law, the child belongs to the mother’s family.
The adopted child can also inherit parental properties. There must be strict proof of adoption under Ghanaian customs or in line with procedures outlined in the Children’s Act 1998 and its amendment in 2016.
As far back as 1977, the Ghanaian court decided, in the case of Plange v Plange, that upon adoption, a child enjoys full rights and obligations from the adopter parent at the same level as a biological child. This court decision still has the blessing of Ghana’s constitution in Article 28.
The factual child is legally called a child in loco parentis. For this child, there is no blood sharing with the parent. Additionally, there is no evidence of adoption but there is evidence to show that the deceased parent treated the subject matter as his or her child.
The evidence may include consistent payment of school fees, consistent provision of necessities of life, listing the person as a child on written deeds or official documents, orally informing independent persons of the parent-child relationship. and so on.
One-off gestures will not suffice. Normally, a person must provide evidence to meet a higher threshold to attain this child status.
It is noteworthy that in all three situations, there is no age requirement. A child may be a toddler, a 15-year-old teenager or a 45-year-old man. From the foregoing, if a person claims inheritance as a child under a will or PNDCL 111, that person must be able to show biological, adoptive or factual parental linkage.
DNA for biological confirmation
In scales of difficulty, child by adoption is the easiest to prove. The most viable evidence is the adoption certificate or the adoption court order.
The most difficult to establish is the factual child relationship, because a claimant must prove that outside the generosity of a deceased, there was indeed a mutually established parent-child relationship.
For child by blood, medical evidence has lessened the difficulty associated with establishing biological parent-child relationship. In the recent court case of Odartey Lamptey v Odartey Lamptey, the Ghanaian court was emphatic that unless there is evidence of mistake or fraud, DNA test results will settle parentage questions.
DNA comes in when there are contentions concerning the parentage of the child. In non-contentious situations, a mother automatically has parentage rights over a child. With fathers, the law presumes a father-child relationship if the child was born during marriage or within 300 days after a marriage ends.
For succession purposes, to draw biological linkage, the DNA examination is a useful tool for settling parent-child contentions.
Donor-assisted reproduction threatens value of DNA test
Donor-assisted reproduction, known as surrogacy, is reproduction with the help of a third-party sperm or womb provider. The assistance from a third party may be threefold.
A third party may provide the womb for the implantation of sperm from an intended parent. A third party may provide a sperm for implantation into the womb of an intended parent. A third-party male may provide sperm for implantation into the womb of a third-party female.
Couples may opt for any of these procedures by choice or for reproductive reasons.
The resulting question will be how the child can prove biological parentage relationship with his intended parent for succession and family membership purposes.
The intended mother who provides a womb will automatically be the mother, but the child will not share the blood of his assumed father. Same way, if the intended father provided sperm for a third-party womb, the child cannot be that of his assumed mother.
The worst of the three is the third situation where both sperm and womb emanate from third parties. Properly so called, the child does not belong to both assumed parents. In these situations, DNA cannot properly determine the parentage of the child.
Current legal solution
Surrogacy can be executed in the home or at a medical facility. There is a legislative solution for the child if the procedure is conducted in a licensed medical facility.
The intended parent can make a pre-birth or post-birth application to the high court for a parental order under the Registration of Births and Deaths Act 2020.
The court order will withdraw parentage from the surrogate to the intended parents. In this instance, parentage will be confirmed by the court order and not a DNA test. DNA testing will produce negative results, but the court order will settle the parent-child relationship. Therefore, the suggestion that DNAs ultimately decide issues of parentage is not entirely true.
The actual difficulty is occasioned in home-executed surrogacies. Home surrogacy occurs if the couple agree that either of them should mate with a third party. It can also be executed by collecting semen unassisted and administering it to an intended parent or a surrogate.
The 2020 act did not make provision for that. Reliance on DNA as the last resort will also cause injustice to the child because the child may not share blood with an intended parent.
There are three possible solutions for the child in this case. These are:
1. The parent can do a formal adoption of the child from the surrogate parents to curtail all future contentions.
2. The parent can establish factual child relationship through acts of parenthood. This is only possible if the parent lives long enough to cater for the child. In the event of early death, providing evidence of loco parentis will be difficult.
3. The parent should make a will which clearly and specifically names the child as a beneficiary. Reliance on PNDCL 111 may cause unwanted litigation and breach of the succession rights of the child.
Essentially, if the assumed parents stay adamant, the child may be legally embattled after death.
What about family membership?
In terms of customary family membership, a 1974 court case of Tanor and Another v Akosua Koko confirmed that an adopted child is a full member of the customary law family. It is my considered opinion that the foundation of the 1974 Akosua Koko case is strong enough to cater for the surrogate child.
The paramount consideration will be the best interest of the child. Based on that, the child will earn full membership in the customary law family which will be determined by the personal law of the parents.
Invariably, a child born to parents from matrilineal societies will belong to the mother’s family. A child born to parents from patrilineal societies will belong to the father’s family. If parents hail from different societies, the child will choose one from his family association and life decisions.
It can be argued to the contrary that surrogate arrangements are mostly made without reference to the family. Based on that, the family should not be saddled with any burdens from the arrangements. Granted this is so, the child is also innocent and there is no legal basis to impose sufferance for the actions and inactions of a couple.
The best interest of the child should prevail and that does not include dismembering the child.
Possible legislative action
Clearly, the Ghanaian Registration of Births and Deaths Act 2020 does not sufficiently govern crucial surrogacy questions. I previously argued in another article that the act requires revamping to answer guardianship questions. (The article can be accessed at https://www.linkedin.com/pulse/lacunae-parentage-guardianship-donor-conceived-ghana-nana-kwaku-pk74e/.)
Additionally, Parliament needs to revisit the law to make sufficient parentage provisions for home-assisted surrogacy. Succession litigation is rife, and these legislative lacunae fuel them. By way of proposal, I will suggest three alternatives.
1. The law can make provision for post-birth parentage applications after the implantation of semen. This will require strict proof of contractual arrangements between the intended parents and the home surrogate and also DNA confirmation of the surrogate’s parentage. If satisfied, an order can be made transferring parentage to the intended parent.
2. The law can use the birth certificate as the telling factor. With this, the surrogate must voluntarily request for the birth certificate to bear the names of the intended parents as the real parents. This act will constitute waiver and transfer of parentage rights.
3. The law can require the surrogate to fully disclose all prevailing surrogacy arrangements during antenatal hospital visits. A secured national database should be provided to record the names of surrogates and intended parents. Entries in the database will serve as sufficient evidence of parentage.
Essentially, the detrimental effects of DNA results will be waned down. The surrogate child will incontestably have a parent, family membership and uncontested succession rights.
Conclusion
It is about time for sufficient legislative coverage of the rights of donor-assisted children.
The customary law family is foundational to Ghanaian society. It is therefore not surprising that greater weight is allocated to blood linkage for the recognition of children.
This corruption should not be sufficient to circumvent the family membership and succession rights of surrogate children.
Nana Kwaku Boadu-Boadu
The writer is a lawyer, chartered economic policy analyst and doctoral researcher
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