The recent landmark court ruling on surrogacy in Rwanda, and the law of June 26, 2024, governing persons and family which also recognises this mode of reproduction, are a milestone in Rwandan legislation, according to Certa Foundation.

Surrogacy is a form of third-party reproductive practice in which the intending parent(s) contract a surrogate mother to give birth to a child.

While both the law and judgement are positive steps, there is a need for further legislation and public education to ensure that surrogacy is well and safely done, understood, and accepted, Certa Foundation stressed.

The Foundation is a non-governmental organisation committed to providing access to quality, equitable justice for vulnerable groups and enhancing the knowledge and capacity of justice sector actors.

It was founded by human rights lawyer Florida Kabasinga.

Its Center for Justice and Advocacy (CJA), which authored the statement sent to The New Times, focuses on protecting, promoting, and preserving the sexual and reproductive health rights of women and girls in Rwanda.

According to the current law governing persons and family (in its article 279), reproduction among spouses occurs naturally or by means of assisted reproductive technologies between a man and woman.

It adds that assisted reproduction between a married man and woman may occur between them and a third party through a written contract in accordance with relevant laws.

"Change like this opens doors for many couples struggling with infertility and acknowledges the evolving nature of family structures. However, it also brings challenges, as the concept is still new to most Rwandans,” said lawyer Laura Kagina, Program Coordinator- Gender Policy Advocacy at Certa Foundation’s CJA.

ALSO READ: Experts weigh in after Govt codifies surrogacy

Indeed, the existing law does not mention which assisted reproductive technologies, such as surrogacy, are allowed in Rwanda, nor does it define them, which may lead to misinterpretation of its provisions, and issues in its implementation.

Meanwhile, according to the Ministry of Gender and Family Promotion, a draft law on health services that shall, among others, provide details on assisted reproductive technologies including surrogacy, is in parliament for consideration.

ALSO READ: Health services bill to clarify surrogacy regulations in Rwanda

Avoiding potential for exploitation

On why there is a need for a law that provides specifics or elucidates surrogacy in Rwanda, the organisation pointed out that while surrogacy provides an avenue for those who cannot conceive to fulfil this right, it also emphasises the right to body autonomy, allowing women to make informed choices about their bodies, whether they choose to become surrogates or seek surrogacy as a solution.

One of the major concerns about surrogacy out of many is the potential for exploitation, it observed, especially in commercial arrangements as has been observed to now be a major challenge facing Asian countries.

Surrogate mothers’ health and well-being should be paramount throughout the surrogacy process, it stated, indicating that comprehensive healthcare and psychological support should be provided before, during, and after pregnancy.

This support should include regular check-ups, mental health counselling, and protection against overexploitation, including limiting the number of surrogacies a woman can engage in, to ensure that her long-term health is not compromised, it specified.

The need for further regulation

As to why further regulation is needed, it held that it is because merely the precedence [set by the landmark court verdict in September 2020] and the law at hand, do not touch on all needed basis.

Left like this, it gives door to future conflict and criticism, it observed, recommending that the law should ensure fair, transparent, and ethical surrogacy arrangements.

Clear legal procedures for establishing parentage after the birth of the child, should be codified to avoid lengthy disputes, it advised.

Establishing a simplified court process or regulatory body to oversee surrogacy agreements will provide certainty and avoid unnecessary legal conflicts, it stated, adding that this includes the timely issuance of birth certificates reflecting the intended parents' names and addressing any potential parental rights disputes.

This legal clarity will safeguard the interests of all parties and protect against potential abuses, it indicated.

Some instances of legal disputes surrounding surrogacy

In some instances – in countries where surrogacy is done – it stated, even people have imposed articles and clauses to the agreements that were less than in good faith, as observed in cases where parents imposed they would not take the child if they happened to be born premature or with disability and some intermediaries have operated unethically by trafficking women, engaging in unsafe practices such as multiple embryo transfer, or brokering surrogacy in war zones.

"In other instances, we have seen occasions where the surrogate refuses to hand over the baby as was reflected in a January 2021 article entitled ‘FOREVER connected” – by six authors namely Bianchi DW, Khosrotehrani K, Way SS, MacKenzie TC, Bajema I, O'Donoghue K. – where the emotional and psychological complications that may arise and lead to the surrogate developing a motherly attachment to the child, are explored.

In situations like this, it said, conflict is bound to occur, which demonstrates the need to approach surrogacy with caution and establish tight regulations.

Therefore, it observed, a specific law on surrogacy is needed in Rwanda to provide a clear legal framework that protects the rights and responsibilities of all parties involved; the surrogates, the intended parents, and children. It should establish binding contract terms, define parental rights, and create enforcement mechanisms to prevent exploitation.

Recommendations for broadening surrogacy rights

Currently, the organisation stated, surrogacy in Rwanda is only allowed for married couples with proven infertility, a limitation that excludes many who might need surrogacy due to physical, mental, or sexual health reasons.

The right to start a family should not be relegated solely to married couples or to persons who have proven infertility.

Expanding surrogacy rights to include individuals and couples regardless of marital status would be a progressive step. It would align Rwanda with global best practices and ensure that all citizens have equal access to reproductive options.