There is an ongoing court case in Rwanda that seems to have tied the judiciary in legal knots as it enters into uncharted territory. It is all about the legality of surrogacy, where a woman carries a child to term on behalf of another woman who is unable to give birth.
Article 4 of the African Charter on the Rights and Welfare of the Child to which Rwanda is a signatory reads: “In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”.
If one went by the above, the whole case would be a no-brainer to solve. And the fact that the law of reproduction is specific that is naturally between a man and a woman or it can be medically assisted.
It is not ours to interpret the law but the case raises some questions that should preoccupy the Law Reform Commission (LRC). There are very many grey areas that keep cropping up and some laws are archaic and do not apply.
Recently, over one thousand colonial laws that were still being applied were scrapped as they no longer applied to the current setting. The LRC should be proactive and draw laws that can be applied to the current trend and anticipate future bones of contention.
The surrogacy case is a sad one and it is hoped that the couple’s long wait for a child and their fight will pave way for surrogacy entering the annals of Rwandan law so that future surrogate candidates will be saved the pain of cruciating suspense caused by a non-existent law.