Nyarugenge Intermediate Court on Thursday heard the appeal case of a family that is seeking the right to have birth by surrogacy, after a lower court – Kicukiro Primary Court – in June ruled to block the procedure.

According to the judge at the lower court, surrogacy is not backed by law, and in making his ruling, he premised on the persons and family law, which states that procreation happens between a man and woman.

Surrogacy 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.

The trial at Nyarugenge court was presided over by the court’s president, Adolphe Udahemuka, who said at the onset that he wanted to understand the legal complexities surrounding the subject of surrogacy.

The case, which has the potential to give jurisprudence in other trials likely to come up in the country and beyond, had besides the appellants, attracted Friends of Court (amicus curiae) from civil society organisations and lecturers of law at the University of Rwanda.

CSOs represented in court by their lawyers included Health Development Initiative (HDI Rwanda) and Haguruka.

The parents seeking surrogacy whose names we shall keep anonymous on request of court, were present in court with their lawyers, and so was the husband and wife who had offered to help the childless couple have a child, by mutual consent.

The couple, which hails from Huye District, opted for surrogacy after nearly ten years of trying the natural way, with no success.

According to all lawyers present, surrogacy is legal in Rwanda. They cited the provision in the law governing persons and families, saying that the judge at the lower court should have read the article on procreation in its entirety, because it states that the process can also be "medically assisted”.

Each party was given time to explain and inform the three-judge bench their stand on the case and all the lawyers agreed that surrogacy in Rwanda is legal given the specific meaning of the word "medically assisted procreation”.

This, they said, can happen regardless of marital status of parties involved.

It was also agreed that, as the law provides, every person has the right to reproduction and assistance in case complexities arise.  

Given that the law allowing medically assisted procreation left room for contextual interpretation, Emmanuel Turatsinze, a lecturer at the University of Rwanda, explained that the responsibility of the court is to examine the impact of surrogacy on the child.

"Since surrogacy in Rwanda is legal and both couples have an agreement that are required by the law, I think the court needs to look out for the rights of the child after the procedure,” he told to the jury.

In her submission, Florida Kabasinga, who represents the parents seeking to have a child by surrogacy, it was not advisable to use this case and make a determination on surrogacy in the country.

She urged the judges to look at the case in the context of her clients and that case is not enough to determine how other cases will be handled since each case has its own context.

"Surrogacy is a complex procedure and each case will certainly have its own issues,” she explained and suggested that the court treats the case in its particularity.

Regarding the child rights concerns raised by the judge at the lower court, Kabasinga, who is the managing partner of Certa Law, a Kigali-based law firm, said that the rights to this particular child are guaranteed in the agreement that the two couples signed when they agreed to have the procedure.

The hearing that took over two hours, was adjourned after all parties gave their submissions and Udahemuka said that the ruling will be made on September 11.

The decision will determine whether or not the couple can proceed to have a child by surrogacy.

The prospective parents went to court after being asked by a doctor who was to perform the procedure to seek a judicial order backing the agreement between the parents.

In an ensuing debate that has been ignited by this case, many lawyers argue that there is no vacuum in the legislation and that the agreement between the two parents would have been enough to guide the doctor to carry out the process.

A lawyer who spoke to The New Times, which broke this story, said last week that the judge at the lower court missed an opportunity to remove any misinterpretation in the law, saying that a judge assumes legislative powers in such instances.