On June 30, 2020, a judge at Kicukiro Primary Court in Kigali ruled to deny a couple the right to have children by surrogacy.

The ruling sparked debate as to whether surrogacy is legal in Rwanda or not.

The couple went to court after other infertility treatments were not successful and doctors advised them to get a go-ahead from courts of law before they can begin medical surrogacy procedures.

The judge ruled to block this procedure saying that the law provides that "procreation occurs between a man and a woman or with assistance” while the petitioners were seeking reproduction between two families which is out of the law.

Surrogacy is still a relatively new phenomenon in Rwanda, but a few couples have over the years expressed interest in the arrangement, and the interest is growing, especially going by the evolution of science, which has not only made the process more efficient, but also progressively affordable.

The procedure involves fertilization of reproductive cells in laboratories and placing the embryo in another woman’s womb to carry the pregnancy and eventually deliver the child on behalf of another couple.

In the case of the two parents, whose identity we shall not disclose, a written agreement had been reached between them and the couple that allowed to carry their surrogate child.

However, before the procedure, the doctor asked for the assent of court, which is how they ended up Kicukiro Primary Court which ruled against them.

The couple has not given up and have appealed the decision.

According to the couple’s lawyer, this process is validated in the Rwandan Law Governing Persons and Families, which stipulates that the mode of reproduction in Rwanda is naturally between a man and a woman or it can be medically assisted.

"Medically assisted procreation must be by mutual consent of the concerned,” the article reads in part.

The couple, through their lawyers, believe that surrogacy falls under the ‘medically assisted’ category.

In the ruling, the judge said that there needs to be clarity on who should be the legal parents of the child to be born from this procedure.

Does the law really need to detail medically assisted reproduction to specify surrogacy? The New Times put this question to Dr Aflodis Kagaba, Executive Director of Health Development Initiative to explain why the law needs reforms.

Lack of clarity might pose uncertainties

Dr Kagaba commends the fact that the law governing persons and families recognizes medically assisted ways of reproduction.

"Rwandans have the right to infertility treatments and surrogacy is one of them,” he said.

However, he agrees that the law needs further details for it to serve the purpose. He mentioned that if medically assisted reproduction is allowed in Rwanda, it needs regulations and legal assistance to minimize risks and problems that could come with it.

"For instance, should a surrogate mother be paid? If there are no regulations, someone might come up with a business to do surrogacy which might be wrong for that matter,” he said.

More details are also needed because concerned parties in the process need to have rights and responsibilities.

Dr Kagaba who is also a human rights activist said that there is a need to know if a child born out of surrogacy has the right to all their parents or if a surrogate mother has any responsibility to the child.

"The same also applies to the rights and responsibilities of prospective parents to surrogate mothers. Should they take care of her while pregnant? The law needs to give such details,” he said.

Dr Kagaba emphasized that as technology advances in almost all sectors of the country, laws should allow the public to access it in all realms.

"We should bear in mind that time might come where a single person would need to reproduce. If lawmakers did not forestall that, it might become a problem.”

Speaking to The New Times, a lawyer who specializes in family litigation said that the judge missed an opportunity to remove ambiguities in the law.

"In my view, the judge missed an opportunity to make the law clearer because, according to the law on civil, commercial, labour and administrative procedure, the judge may assume legislative duties in case of ambiguities in the law,” he said.

Plans to reform?

Unless there are claims or drafts of laws about particular topics, there are no immediate plans to amend the family law, according to the Law Reform Commission.

However, Jocelyne Uwamwezi, a legal awareness specialist at the commission said that if claims and calls to revise the law arise, it can be considered.