THE WOMB ON TRIAL: WHEN THE WOMB BECOMES THE ACCUSED

A Breast Cancer Month Reflection on Section 41(3)(c) of Act 367.   

• By His Lordship Justice Alexander Osei Tutu, J.A.

 

Author’s Dedication:

To the Ghanaian woman whose womb was put on trial – called obonini, kukuba – divorced because she bore no child;

To the woman who wept like Hannah (1 Samuel 1:10) but was told her tears were her fault;

To a survivor of breast cancer whose breast, like her womb was judged.

Released October 2026 – Breast Cancer Awareness Month. Pink ribbon🎀 = global symbol for breast cancer awareness – hope, solidarity and fight against stigma of a female organ.

 

Highlights or what you will find:

1. Asaase Yaa may not be barren, but is unfairly blamed.
2. A gift cannot be demanded, it must be awaited.
3. Sarbah’s 1904 voice should not judge a 2026 womb.
4. Barrenness is a medical condition, not a divorce ground.
5. Equity looks at the person, not the organ.

 

Do you know that:

1. Barrenness is forty percent (40%) male factor, forty percent (40%) female factor and twenty percent (20%) unexplained causes?
2. In India, barrenness is not a ground for divorce?
3. Customary practice which allows a man to divorce a woman as a result of barrenness conflicts with the UN CEDAW and Maputo Protocols?

 Abstract

The Matrimonial Causes Act, 1971 (Act 367) retains barrenness as a ground for the dissolution of customary marriages under Section 41(3)(c).

This paper argues that the provision is constitutionally infirm, empirically unsupported, procedurally unfair, doctrinally inconsistent and internationally non-compliant. It violates Articles 17(2) & 26 (2) of the 1992 Constitution per Nartey v. Gati,[1] breaches its own equity proviso, and denies audi alteram partem by allowing elders to declare a woman barrenness with no medical proof. It discriminates per se, as there is no equivalent ground for male infertility. While the WHO data pegs the infertility rate of the male to the female ratio at par, women often bear hundred percent (100%) of the blame.

Rooted in agrarian logic where children were instrumentum laboris, its rationale has ceased. Cessante ratione legis, cessat et ipsa lex.

Using Breast Cancer Awareness Month as a lens – the womb as the object – and drawing on Daniels, Fortes, Yankah, WHO data and the 2021 Census, the paper calls for reforms.

 

1. Introduction – Putting the Law in Perspective

For ease of reference, Section 41(3)(c) of the Matrimonial Causes Act, 1971 (Act 367) provides:

“(3) In the application of section 2(1) of this Act to a marriage other than a monogamous marriage, the Court shall have regard to any facts recognised by the personal law of the parties sufficient to justify a divorce, including in the case of a customary law marriage … (c) barrenness or sterility, … Provided that this subsection shall have effect subject to the requirements of justice, equity and good conscience.”

This article is NOT about breast cancer. It is about the womb. Even though Section 41(3)(c) does not specifically mention women, practical realities as corroborated by the literature on the subject are that whenever a marriage does not produce children, the woman is branded as the one incapable of fulfilling her reproductive role, whereas medical reality might be that the man is the one responsible or that the parties are just not compatible.[2] This article interrogates the injustice often unleashed upon women by an entrenched customary norm that equates a woman’s marital worth with her reproductive capacity.

Breast Cancer Month is only used as an occasion – a mirror. As Ghana joins the rest of the world to commemorate this year’s Breast Cancer Awareness Month, the focus is on the breast – a female organ stigmatised by disease, for which some marriages have been lost because a woman was afflicted. Yet another female organ whose inadequacy has led to injustice against some women is the womb. This article therefore uses the month of the breast to draw attention to the trial of the womb. Breast is the lens; womb is the object.

Facially neutral but discriminatory in real life, Section 41(3)(c) is indirect discrimination offending the equality principle guaranteed under Article 17 of the Constitution and the standard of “natural justice, equity and good conscience” in the choice of law rules in Section 54 of the Courts Act, 1993 (Act 459).

Denning LJ in Packer v. Packer taught that law must not be kept in a glass museum.[3] Customary law is a living organism; as society evolves, so must it.[4] For cessante ratione legis, cessat et ipsa lex – when the reason for a law ceases, the law itself must cease. It retains barrenness as a fact that may justify the dissolution of a customary marriage for a crime the womb did not commit.

2. Traditional Notion: The Greatest Humiliation

Traditionally, barrenness was cast as a curse, as punishment from the gods. In some instances, the woman was tagged as promiscuous, masculine or as someone who had committed a sacrilegious act. According to Tabong and Adongo,[5] “[I]n some parts of Ghana, infertile women may be labelled as witches,[6] abandoned by relatives, forbidden from interacting with children, or denied hereditary chieftaincy status.” She was often returned, replaced, called obonini and kukuba – one who does not produce.

W.C. Ekow Daniels notes[7]: “for no disgrace is so keenly felt as that of not having children.” Tallensi believe that “it is better to die in poverty and leave children behind than to die childless.[8] Meyer Fortes put it: “Childlessness is… the greatest of all personal tragedies and humiliation. Prolific child-bearing is honoured.”[9]

In his insightful exposition, Kwesi Yankah[10] explains the social reality:

“[t]he condition of childlessness is sometimes taken as having been inflicted by an adversary. But its consequences of social disapproval are harsh enough. In certain cases, the society’s reaction may find expression in songs of sarcasm and ridicule, as can be found in the following song:

We shall drag her on gravels.

Gyankuku Abena, the barren, is childless.

What do we do of it?

We shall pelt you with stones.”[11]

Daniels’s illumination is crucial. If childlessness is already the greatest humiliation, then Section 41(3)(c) commits a double injury – it adds legal disgrace to a personal tragedy. It punishes the victim for her own wound. Studies show that the stigma is so severe that some women who cannot withstand its agony end up taking their own lives.[12]

Our elders say, “When the hunter returns without meat, he beats his dog”. The cause of childlessness may be many, but it is the womb that suffers for it. The womb is put on trial for a crime it may not have committed.

 

3. The Vanishing Economic Rationale: From the Farm or Sea to the Classroom

Customary law is not abstract; it rests on economic foundations. In both pre-colonial and colonial Gold Coast, children were instrumentum laboris – instruments of labour. They helped their fathers on farms, especially cocoa farms, and in fishing expeditions. Without children, a man was at an economic disadvantage, the farm being his factory and the canoe, his enterprise. This is not to discount the contribution of hired farm hands or caretakers.

In Quartey v. Martey & Anor.,[13] Ollennu J, as he then was, observed that it was the responsibility of a man’s wife and children to assist him in the carrying out of the duties of his station in life, e.g., farming or business. The proceeds of this joint effort and any property acquired with such proceeds belonged solely to the man.[14]

So central was this that in many cultures, particularly among the matrilineal Akans, a woman’s family rewarded a man who gave them ten children with a sheep called “badu dwan”, literally meaning: the sheep for ten children.[15] Prolific child-bearing was human capital for the predominant activity of farming or fishing.

Turaki[16] recounts that in most African societies, the acceptance of the bride-price by the bride’s family constitutes a social contract – an implied warranty that the bride will bear children. The failure on her part entitles the husband to demand a restitution of the bride-price. This explains why barrenness was not merely a private misfortune but a breach of a family-to-family contract. It is a powerful articulation of the old agrarian logic – but that logic is precisely what has lost its vitality.

The Ratio has Vanished.

First, monetisation: Labour is now mainly hired with money, not begotten by birth.

Second, the irony of national policy: Since 1969, Ghana has promoted family planning[17] – fewer children, better life. The society that once rewarded ten children with a sheep now urges the use of contraceptives for fewer children.

Third, education: Children are now beneficium educandum – beneficiaries of education, not farmhands and canoe crew. Free Senior High School (FSHS) and child labour laws keep them in classrooms, not on farms or at sea.[18] Children are now dependants consuming school fees, not labour producing income.

Therefore, even on its own contractual logic, the custom fails. The consideration has failed. The man without a child today is not disadvantaged; the man with ten children to educate in 2026 is. Lex non cogit ad impossibilia – the law cannot compel the impossible, nor punish what it once incentivised but now discourages. The customary consideration has not merely failed; it has reversed. This economic reversal must inform the statutory test of equity discussed below.

 

4. Statutory Position: The Equity Proviso

Section 41(3)(c) is expressly made subject to “the requirements of justice, equity and good conscience.” Equity, as we know, looks at substance not form. Can equity look at a woman and see only a womb? It cannot. Equity looks at the person, not the organ.

The gendered nature of this misconception is well documented. Joana Mantey[19], writing on the Ghanaian experience, notes that women are mostly blamed for childlessness in marriage irrespective of the underlying causes. This is not accidental.

More than a century ago, Sarbah[20] recorded, “If a husband is impotent or neglect his wife or grossly ill-treat her, or absent himself for a long period of time, so that she commits adultery, he can divorce her.”[21]

No reciprocal remedy was available for the wife. Sarbah did not write that if a husband is impotent, his wife may divorce him. He wrote that the impotent husband may divorce the adulterous wife whom his own impotence drove to adultery.

That is the whole mischief of Section 41(3)(c). It inherits a jurisprudence where the woman is blamed even when the seed itself is admittedly impotent. A provision that allows an impotent man to divorce his wife because his impotence made her commit adultery is not justice, equity and good conscience. It is the very definition of inequality.

One writer[22] equally observed that the earth itself is addressed with a feminine pronoun – Asaase Yaa[23] – so society, since time immemorial, has made childbirth and fertility a woman’s issue without paying attention to other factors. The writer analogises this to the land: when a piece of land does not produce vegetation, it is assumed to be barren; environmental factors and, in some cases, conditions of the seeds planted on it are ignored. Our ancestors knew this. An Ewe proverb goes, “Kuviator fe agbleme yae dã dzia vi do” to wit: the barrenness of a farm is caused by the laziness of its farmer. The same applies to a woman who has been married for a year or more and does not conceive. She is labelled barren without any examination of the seed.

This is why Section 41(3)(c) is no longer needed. If impotence itself does not give a woman a ground, but gives the man a ground when she reacts to it, then the section is not about children, it is about patriarchal control.

The law must no longer speak with a 1904 voice on a 2026 womb.

 

5. Medical Reality – The Male Half

Infertility is involuntary and gender-neutral. The World Health Organisation (WHO) Infertility Fact Sheet (28^th November 2025) [24] affirms that infertility is a disease of the male or female reproductive system, that it may occur due to male, female or unexplained factors, and that roughly one in six people of reproductive age worldwide experience it in their lifetime. The medical literature attributes a male factor to about 40% – 50% of cases. In many Ghanaian communities, however, infertility is still seen as a divine punishment with women most often blamed and stigmatised.

Ghanaian data confirms this global picture. Dr Charles Takyi of the Korle Bu Teaching Hospital, explaining the Ghanaian infertility burden, puts the national infertility rate at fifteen (15%) of couples of reproductive age – and of this, the male factor alone accounts for half.[25] This means that roughly one in every seven Ghanaian couples of reproductive age is affected by infertility. Yet Section 41(3)(c) is weaponised almost exclusively against women, as if that fifteen (15%) were hundred percent (100%) female.

Conditions such as fibroids, Polycystic Ovary Syndrome (PCOS)[26], and azoospermia[27] are treatable. Assisted Reproductive Technology including IVF exists.

Ubi jus ibi remedium[28] – where there is a right, there is a remedy – but where is the remedy for the woman? The law offers divorce instead of treatment.

 

6. Socio-Religious Conscience: The Seventy Percent (70%) Factor and the Gift Principle

Law does not operate in vacuo.[29] Ghana Statistical Service’s 2021 Census shows 71.3% of Ghanaians are Christians.[30] Equity must have a Ghanaian conscience.

The Bible shows Sarah[31], Rebekah[32], Rachel[33], Hannah[34], and Elizabeth[35] were all barren, yet none was divorced. Time vindicated them.

Crucially, Psalm 127:3 declares: “Children are a heritage from the Lord, offspring a reward from him.” (NIV) Children are a gift. A gift cannot be demanded by writ or a petition.

Nemo dat quod non habet – no one can give what she has not received. You cannot sue the receiver for the donor’s delay. To divorce a spouse for failing to procure a gift only God gives is to make God a co-respondent.

If children are a gift, barrenness is Actus Dei nemini facit injuriam – an act of God that does wrong to no one. No liability attaches.

 

7. Violence Against Women

The observation by Daniels and Fortes that childlessness is no disgrace so keenly felt cannot be glossed over. To rely on barrenness as a legal weapon to eject a woman from her matrimonial home is violence against women.

(a) Under Section 1(b)(iii) and (iv) of the Domestic Violence Act, 2007 (Act 732), domestic violence includes economic abuse and emotional, verbal or psychological abuse. Divorcing and ejecting a woman from her matrimonial home for involuntary childlessness is psychological violence. In some cases, it becomes a justification for depriving her of her fair share of marital assets or her due share of the estate of a deceased husband. The unfortunate reality is that, four decades after the enactment of the Intestate Succession Law, 1985 (PNDCL 111), some people, sadly, including educated ones, still hold on to the conception that a childless woman has no share of the estate of her deceased husband. This is the mischief PNDCL 111 cured, but customary law tends to reinvigorate it.

(b) Under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Maputo Protocol[36] (Articles 1, 2 and 16(1)(c) of CEDAW; Articles 2 and 7(b) of the Maputo Protocol), it is gender-based discrimination. Article 5(d) of the Maputo Protocol also enjoins State Parties to protect “women who are at risk of being subjected to harmful practices or all other forms of violence, abuse and intolerance.” Under Article 7, State Parties are to enact appropriate legislation to ensure that men and women enjoy the same rights in case of divorce, and that a marriage is severed only by a judicial order. The judicial order would enable the woman to be adequately heard during divorce. Ghana is yet to enact a law requiring all marriages, including customary marriage, to be dissolved by a court of competent jurisdiction. To punish a woman for a physiological condition over which she has no control is lex injusta.[37]

This analysis excludes situations where the cause of the infertility ascribed to the woman is self-inflicted through previous intentional terminations, not justified by medical exigencies.

 

8. The Proxy Paradox: If Absence Does Not Invalidate, Why Should Barrenness Dissolve?

Under customary law, proxy marriage is allowed. A marriage is valid upon the performance of the requisite customary rites even without the presence of the parties or consummation.[38] Offei[39] underscores that consummation is not an essential requirement of a valid customary marriage.[40]

The implication is profound. It creates a paradox: If the absence of consummation – the act that produces issues – does not invalidate a customary marriage at its inception, then the absence of an issue – the fruit of the act – cannot dissolve that same marriage during its subsistence.

Customary law, by validating proxy marriage, has to some extent, provided the assurance that sex and presence are not essential to the validity of a marriage. To then allow barrenness – non production of an issue – as a ground to dissolve that same marriage is doctrinally inconsistent.

It is juridically indefensible and perverse to treat consummation as irrelevant at entry but decisive at exit. It is a case of approbating and reprobating. Custom approbates marriages without touch, but reprobates a woman because the touch produced no child.

 

9. Common Law: Barrenness is Not a Breach

At common law, marriage is not a contract for the production of children with a warranty of fertility. Barrenness simpliciter is not a ground for divorce. The law only intervenes where there is fraudulent concealment of known incurable impotence or barrenness vitiating consent to the marriage. The mere inability to conceive, without fault, does not constitute matrimonial misconduct.

To treat it as such is to confuse actus Dei[41] – the act of God – with breach of contract.

 

10. Comparative Jurisprudence: India Shows the Way

In Ghana, both impotence and barrenness are retained under Section 41(3) of the Matrimonial Causes Act, 1971 (Act 367) as facts that may justify the dissolution of a customary marriage. The customary law therefore treats the two as separate matrimonial faults.

Indian courts have drawn a strict legal distinction between impotence and sterility. Impotence is the physical inability to consummate the marriage through normal sexual intercourse. Under statutes like Section 12(1)(a) of the Hindu Marriage Act, 1955, impotence is a valid ground to declare a marriage voidable. Sterility or infertility on the other hand, is the inability to procreate or bear children biologically, even though the person is fully capable of engaging in normal sexual intercourse. The former goes to the foundation of a marriage, while the latter does not.

Because marriage is legally viewed as a bond of companionship and not solely for procreation, the legislature has not included childlessness or barrenness as a statutory ground for divorce and the courts in India have given effect to that legislative intent.

(i) The Patna High Court (Bajanthri & Jitendra Kumar JJ) in Sonu Kumar v. Rina Devi held[42]:

– “Developing any disease during continuation of marriage is not within the control of any spouse… the other spouse has a marital duty to co-operate and bear with it and help the other spouse … inability to bear a child is neither impotence nor any ground for dissolving the marriage… parties may resort to adoption. Divorce is not provided in such circumstances.”

(ii) The Calcutta High Court (Shampa Dutt Paul J) in Sri Uttam Kumar Bose v. State of West Bengal & Anor. decided[43]:

“The reason of infertility is not a ground for divorce. There are several options to become parents. A spouse has to be understanding… It was extremely insensitive… to ask… for divorce in such traumatic situation… which amounts to mental cruelty.”

The Calcutta High Court held that abandonment during infertility is continuing cruelty under Section 498A of the Indian Penal Code (IPC), which is constructively equivalent to the psychological abuse under Ghana’s Act 732. What India calls cruelty, Ghana must call violence.

 

11. Conflict of Laws &   Constitutional Anchoring

There is an internal conflict within Ghana’s matrimonial laws that reveals the colonial duality. While Act 367 is post-independence legislation, its architecture largely rests on colonial foundations.

Barrenness is a ground for divorce under Section 41(3)(c) in a customary marriage, but it is not stated as a ground for divorce under Section 2 in an Ordinance marriage. Conversely, adultery is a ground for divorce under Section 2 in a monogamous marriage, but it is not listed as a ground for divorce under Section 41(3)(c) in a customary marriage.

Thus, citizens of the same land now have different rights based solely on the type of marriage contracted. Two Ghanaian women, both childless, have different legal fates because one performed customary rites and the other went to the Ordinance registry. This is in direct conflict with Article 17(2) of the 1992 Constitution – the non-discrimination provision on social grounds. If a woman married under the Ordinance cannot be divorced merely on the ground of barrenness, but the one married under customary law can, the discrimination is evident.

Barrenness as a ground for divorce under customary law was a pre-colonial and colonial ordering when Ghana had no international obligation to discharge. With an international law obligation to ensure the equal right to decide a family size, Ghana can no longer retain a law that UN CEDAW has called on us to repeal since 2014.

Article 26(2) also prohibits any customary practice which dehumanises or is injurious to the physical and mental well-being of a person. Declaring a woman, a failure because her womb did not produce a child – without medical proof, without audi alteram partem, and blaming her for what may be male infertility – dehumanises her and injures her mental well-being. It reduces her to instrumentum laboris – a mere instrument of reproduction. This cannot survive the Article 26(2) test.

Furthermore, barrenness as a ground for divorce sits uneasily with the legislative policy in Section 4(1) of the Persons with Disability Act, 2006 (Act 715), which makes it unlawful to discriminate against, exploit, or subject a person with disability to abusive or degrading treatment. While Act 715 appears to speak broadly, infertility and impotence are at minimum health conditions.

The World Health Organisation[44] describes infertility as “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after twelve months or more of regular unprotected sexual intercourse.”

If Parliament has outlawed degrading treatment on the basis of disability, it is anomalous for Parliament in Act 367 to retain a health condition of similar nature as a standalone ground to dissolve a marriage. The two Acts point in opposite directions.

If customary law permitted this in an agrarian era, Ghana’s subscription to CEDAW and Maputo Protocol and the 1992 Constitution’s equality architecture demand a careful scrutiny by the lawmaker. The reason has ceased. Cessante ratione legis, cessant ipsa lex.

 

12. Concrete Reforms

Four tracks are proposed.

1. Immediate – Judicial Activism: The Supreme Court is invited to use constitutional avoidance to declare Section 41(3)(c) as inconsistent with Articles 17 and 26(2) as well as the equity proviso. It can employ the reasoning in Nartey v. Gati supra to strike down the provision.

 

1. Legislative – Two Options:

Option 1 – Outright repeal of Section 41(3)(c) by Parliament.

Option 2 – Amendment to read: “Barrenness, sterility or impotence, where medically certified as incurable by a certified medical board and after counselling and consent of both spouses, may be considered with other facts” – to align with India and WHO best practice.

 

• Law Reform Commission:

The Ghana Law Reform Commission must undertake a holistic review of barrenness, sterility and impotence as grounds for the dissolution of a customary marriage under Section 41(3)(b) and (c). While these grounds were rooted in an agrarian conception of marriage as primarily procreative, they are today more understood as medical conditions.

The review should therefore be undertaken in the light of current statutory and international framework, including Articles 17(2) and 26(2) of the 1992 Constitution, Section 4 of the Persons with Disability Act, 2006 (Act 715), CEDAW and the Maputo Protocol.

 

1. Non-Legal:

• Mandatory pre-divorce counselling and medical referral under the Domestic Violence Act.
• Legal Aid Commission support for women facing customary divorce on this ground.
• Public education by the National House of Chiefs to delist barrenness as a ground in codified customary law.

 

13. Conclusion: Taking the Womb Off Trial

Customary law must be purged of its harsh excrescences. The tragedy deepens when statute becomes an accomplice to custom’s cruelty – the law no longer acts as arbiter, but as an accomplice.

Section 41(3)(c) of Act 367 has outlived its agrarian utility, offends its own equity proviso, and in practice, denies audi alteram partem, and constitutes psychological violence under Act 732.

Let the womb be taken off trial. Let the law stop beating a woman where biology already bruised her. Let custom evolve from the field and the sea to the classroom, from “badu dwan” to family planning, from curse to clinic, from gift demanded to gift awaited.

In 2026, the question is no longer whether a woman can bear children for an agrarian economy that rarely needs them, but whether the law can bear justice for the woman it once abandoned.

Cessante ratione legis, cessat et ipsa lex – the reason for the law has ceased; let the law itself cease. As we celebrate Breast Cancer Awareness Month (this October 2026), let us remember that equity looks at the person, not the organ. May equity finally have a Ghanaian conscience in this area.

 

[1] [2010] SCGLR 745.

[2] Philip Tabong and Philip Baba Adongo in their 2013 paper, “Infertility and Childlessness: A Qualitative Study of the Experiences of Infertile Couples in Northern Ghana” noted thus: Regardless, of the medical cause of infertility, women receive the major blame for the reproductive setback and they suffer personal grief and frustration, social stigma, ostracism and serious economic deprivation.” See also Dyer SJ, Abraham n. Hoffman M, Van der Spy ZM: Infertility in South Africa: Women’s reproductive health knowledge and treatment seeking behaviour of involuntary childlessness. Hum Reprod. 2002, 17: 1668.2023.

[3] In Packer v. Packer [1953] 2 All ER 127, Lord Denning famously rejected the strict adherence to precedent when it causes the law to be obsolete and is detached from society. In his most iconic dictum on the subject, he noted: “If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both.” This warning – that the world will leave behind a law that refuses to change – is widely cited globally by courts seeking to prevent constitutions and the common law from becoming historical artifacts. It birthed the broader legal maxim that “the law is not a museum piece,” reinforcing that justice must remain a living breathing organism.

[4] In Nkrumah & Anor. v. Manu [1971] 1 GLR 176, Taylor J., as he then was, underscored that custom must change to meet the demands of modern times.

[5] Adongo, Philip, Tabong Philip etc., “A Comparative Qualitative Study of Misconceptions Associated with Contraceptive Use in Southern and Northern Ghana” Frontiers in Public Health 2:137 10.2289/fpubh. 2014.

[6][6] Donkor ES, Sandall J., “Coping strategies of women infertility treatment in southern Ghana.” Afr J Reprod. Health. 2009;13:81-93.

[7] William Cornelius Ekow Daniels, “The Law on Family Relations in Ghana”, pp. 319-320, Published by Black Mask Ltd., Accra (2019). See also William Offei, “Family Law in Ghana”, 5^th edition, p. 175 (2018) & Francis Tetteh, “Family Law & Practice in Ghana”, p. 31 (2025).

[8] Supra.

[9] Meyer Fortes, “Kinship and Marriage Among the Ashantis” in African System of Kinship and Marriage, edited by Radcliffe-Brown and D. Fortes (1950), 11^th imp. 1975) 262.

[10] Kwesi Yankah, “Traditional Lore in Population Communication: The Case of the Akan in Ghana”.  African Media Review Vol. 6, No. 1 1992 © African Council for Communication Education.

[11] Aning, B.A., “Nnwonkoro”, p. 84, Ghana Publishing Corporation, Accra (1975).

[12] Nana Yaw Osei, “Need for accessible infertility care in Ghana: the patient’s voice”. National Library of Medicine (June 30, 2016)

[13] [1959] GLR 377.

[14] See also Mensah v. Mensah [2012] 1 SCGLR 391.

[15] See Yankah supra & Grace Diabah, “From ‘Recharger’ To ‘Gidi-Power’, Critical Discourse Studies, Vol. 12, 2015 – Issue 4.

[16] Turaki Y. “Christianity and African god: a method in theology,” Institute for Reformational Studies, Potchefstroom. (1999). See also Kimathi G., “Your marriage and family,” Institute for Reformational studies, Potchefstroom. (1994).

[17] In 1969, the government issued a major policy paper titled: “Population Planning for National Progress and Prosperity”, laying the national framework for population control and family planning services. In May 1970, it officially launched the National Family Planning Programme (NFPP) to systematically curb rapid population growth and expand access to contraception. See Holly Ashford, “Population Control, Development, And Ghana’s National Family Planning Programme, 1960 – 1972. Cambridge University Press, Vol. 63, Issue 2 (Published on 11^th September, 2019).

[18] See the 1992 Constitution, art 25(1)(a) (free compulsory basic education); Children’s Act, 1998 (Act 560), ss 8, 12 and 87; and the Free Senior High School Policy 2017.

[19] Joana Mantey, “Infertility Places Pressures on Women in Ghana”. January 28, 2013. Available online.

[20] See John Mensah Sarbah, “Fanti Customary Law”, (2^nd Edn.) pages 52-53.

[21] William E. Offei, “Family Law in Ghana”, Fifth Edn. (2018) at pages 177-178.

[22] Angela Onwuzoo, “Blame Game: How societal beliefs make women scapegoats for childlessness, absolve culpable men”. July 21, 2024, available online.

[23] Asaase Yaa is an Akan term for a female born on a Thursday.

[24] World Infertility Day: 40% of Infertility Cases Involve Men/Times Now (July 25, 2026) & Infertility may be becoming more of a man’s problem than woman’s problem/News Medical Life Sciences (June 27, 2005).

[25] Available online.

[26] A common hormonal disorder that affects women during their reproductive years.

[27] A medical condition defined by the complete absence of measurable sperm cells in a man’s ejaculate (sperm).

[28] It means “where there is a right, there is a remedy.”

[29] In vacuo means in a vacuum or in isolation.

[30] Ghana Statistical Service, 2021 PHC General Report (GSS 2021).

[31] Genesis 11:30.

[32] Genesis 25:21.

[33] Genesis 29:31.

[34] 1 Samuel 1:5.

[35] Luke 1:7.

[36] These are key international and regional human rights instruments designed to protect and promote women’s rights, though they operate at different levels and offer distinct scopes of protection.

[37] It translates: “An unjust law is no law.”

[38] The locus classicus of Yaotey v. Quaye [1961] 2 GLR 573 and Re Caveat by Clara Sackitey [1962] 1 GLR 180, per Ollennu J., High Court, listing four essentials for a valid customary marriage including (d) consummation. Sowa v. Sowa [1961] 1 All E.R. 687 is an English Court of Appeal decision and thus only persuasive in Ghana post-Republic 1960, but it directly decided the proxy point that a valid Ghanaian customary marriage existed even though the parties were miles apart and had not consummated the marriage. The two are reconcilable: Ollennu described the ideal completed marriage; Sowa decided the minimum requirement for validity of a customary marriage. As Offei argues, consummation is confirmatory not constitutive, evidential not essential. Under Ghanaian custom, a marriage is between families, so presence is not essential. Thus, Ollennu’s fourth requirement is directory.

[39] William E. Offei, “Family Law in Ghana”; 5^th edn at pp. 24-25. See also Francis T. Tetteh, “Family Law & Practice in Ghana”, at p. 25, 2025.

[40] The absence of consummation, under Section 13 of the Matrimonial Causes Act, 1971 (Act 367) however renders an ordinance marriage voidable.

 

[41] Actus Dei nemini facit injuriam translates to “an act of God does no injury to no one” or “the law holds no person responsible for an act of God”.

[42] Dated 19 July 2023.

[43] (2023 SCC Online Cal 103, 17 January 2023).

[44] WHO, SRH Glossary (2009); WHO Fact Sheet, Infertility: “a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.” Available online.