New law would restrict surrogacy in Uganda to infertility

March 27, 2024

The Tororo District Woman Member of Parliament, Sarah Opendi, is proposing to have surrogacy in Uganda to be restricted to only individuals facing fertility challenges or those with health challenges that affect their ability to have children.

Universally, surrogacy is defined as an arrangement, often supported by a legal agreement, whereby a woman agrees to deliver/labour on behalf of another couple or person, who will become the child’s parent(s) after birth.

Opendi’s proposal is contained in The Human Assisted Reproductive Technology Bill, 2023 that she tabled in Parliament recently. The former State Minister for Health (General duties) finally tabled the private member’s Bill after being granted leave in July 2022.

“This is a Bill intended to regulate the various fertility clinics that are operating and increasing in this country without any piece of legislation. We have consulted all the stakeholders widely, and to our surprise, many African countries that actually started these services 30 years ago don’t even have any legislation. So, Uganda will be one of the few countries where other countries will benchmark if this bill is passed,” said Opendi while tabling the Bill.

In Clause 21 of the Bill, Opendi proposes conditions for intending parent to opt for surrogacy where a registered medical practitioner has, upon examination of the intending parent, established that; “(a) the intending parent suffers primary or secondary infertility, or(b) the intending parent suffers health challenges which affect the intending parent’s ability to reproduce.”

Infertility is defined in the Bill as a condition characterised by the failure to establish a clinical pregnancy after twelve months of regular, unprotected sexual intercourse or due to a health challenge which affects a man or woman’s capacity to reproduce.

The Case for the Human Assisted Reproductive Technology Bill,2023

According to Opendi, The Human Assisted Reproductive Technology Bill,2023 is intended to regulate the use of human assisted reproductive technology; to designate the Medical and Dental Practitioners Council as the body responsible for the administration of this Act.

It is also intended to, if passed into law, provide for the establishment of sperm, oocyte and embryo banks within fertility centres as well as to regulate the donation and storage of gametes or embryos.

She added that the Bill is intended to provide for the rights and duties of persons involved in human assisted reproductive technology and rights of children born through human assisted reproductive technology; and, to provide for a register for information collected on human assisted reproductive technology under this Act and to provide for designation of health units as fertility centres.

The lawmaker also defended the need to enact the law, noting that over time, there has been an increase in the number of people opting for human-assisted reproductive technology through various fertility solutions, including the use of In Vitro Fertilisation treatment, commonly known as “IVF” and intrauterine insemination.

She also said that the increasing demand for the use of human-assisted reproductive technology has been necessitated by the growing cases of primary and secondary infertility and other health-related challenges among persons seeking to have children.

“The intention of the Bill is to address the gaps caused by the absence of a legal framework on human-assisted reproductive technology in Uganda. The Bill, therefore, seeks to regulate human-assisted reproductive technology in Uganda, provide for the designation of health units as fertility centres, provide for the establishment of sperm, oocyte and embryo banks within fertility centres, and rights and duties of persons involved in human assisted reproductive technology and donation and storage of gametes and embryos. The Bill further seeks to protect the rights of a child born through human-assisted reproductive technology,” added Opendi.

The Bill at a glance

In clause 30, Opendi has proposed imprisonment for life to be imposed on medical practitioners who use their own gamete or embryo without consent while providing human-assisted reproductive technology services to the person.

While in clause 31, the Bill has proposed to bar a registered medical practitioner from implanting a human admixed embryo or any other embryo that is not a human embryo into a woman’s uterus, with the registered medical practitioner found acting in contravention of this provision to be convicted to imprisonment for life.

A human admixed embryo is an embryo created by replacing the nucleus of an animal egg, cell, or two animal pronuclei, with two human pronuclei, one nucleus of a human gamete or of any other human cell; or one human gamete or other human cells where any other embryo created by using human gametes and animal gametes; or one human pronucleus and one animal pronucleus, a human embryo that has been altered by the introduction of any sequence of nuclear or mitochondrial DNA of an animal into one or more cells of an embryo.

Opendi in clause 22 proposes conditions for the surrogate mother where she is proposing to have (l) A fertility centre or registered medical practitioner shall, before providing human assisted reproductive technology services to a surrogate mother, ascertain a number of requirements are met, including ensuring that the surrogate mother is; aged eighteen years and above, has entered into a surrogacy agreement under Clause 23 with an intending parent.

The lawmaker also proposed in clause 22(2) for any registered medical practitioner who contravenes the above provision to be held liable, on conviction, to a fine not exceeding five hundred currency points (UGX 10 million) or imprisonment for a term not exceeding five years, or both, while a fertility centre found to have contravened the same provision, would be fined five thousand currency points (UGX 100 million).

In clause 17 of the Bill, Opendi has proposed for surrogacy to be conducted by people above 18 years and any registered medical practitioner who contravenes this provision will have committed an offence and is liable, on conviction, to a fine not exceeding UGX 200 million or for a jail term not exceeding 10 years, or both.

The Bill in clause 11 is seeking to limit the practice of human assisted reproductive technology services to be provided in a fertility centre by registered medical practitioner, with anyone found carrying out any services in contravention of this provision to be fined UGX 200 million or face a jail term of 10 years or both.

According to the World Health Organisation, every human being has a right to the enjoyment of the highest attainable standard of physical and mental health, and individuals and couples have the right to decide the number, timing and spacing of their children, but infertility can negate the realization of these essential human rights.

WHO raised concern that the availability, access, and quality of interventions to address infertility remain a challenge in most countries, where diagnosis and treatment of infertility are often not prioritised in the national population and development policies and reproductive health strategies are rarely covered through public health financing.

“While assisted reproduction technologies (ART) have been available for more than three decades, with more than 5 million children born worldwide from ART interventions such as in vitro fertilisation (IVF), these technologies are still largely unavailable, inaccessible and unaffordable in many parts of the world, particularly in low and middle-income countries (LMIC),” noted WHO.

WHO thus called on Governments to come up with policies that could mitigate the many inequities in access to safe and effective fertility care and effectively address infertility, putting in place health policies to recognise that infertility is a disease that can often be prevented, thereby mitigating the need for costly and poorly accessible treatments.

“In addition, enabling laws and policies that regulate third party reproduction and ART are essential to ensure universal access without discrimination and to protect and promote the human rights of all parties involved. Once fertility policies are in place, it is essential to ensure that their implementation is monitored, and the quality of services is continually improved,” added WHO.

Deputy Speaker Thomas Tayebwa referred The Human Assisted Reproductive Technology Bill,2023, to Parliament’s Health Committee for scrutiny and have the report tabled before Parliament within 45 days so as to allow MPs to take a final decision on the proposals fronted by Opendi.