Introduction
Technological advances in reproductive health have resulted in an increasing number of options for parents who are unable to have biological children on their own1. Among the available options for parents who are desirous of having children but are unable due to certain medical conditions, are Assisted Reproductive Technology (ART) and surrogacy. Indeed, surrogacy is fast becoming a popular pathway to starting a family for many people in the Western world, including Nigeria. For couples who are unable to naturally conceive due to infertility issues in either partner caused by chronic or terminal illnesses, and health complications, the option of surrogacy, though somewhat costly, offers some reprieve2. Whereas countries like South Africa and the UK3 have enacted laws to regulate surrogacy, Nigeria lacks any specific legal framework for the regulation of surrogacy. Despite this lacuna, surrogacy is not unknown to the Nigerian socio-political system as some specialist clinics and individuals practice surrogacy.
This article aims to discuss the regulation of surrogacy practice in Nigeria, with a particular focus on the enforceability of surrogacy agreements by the courts. For the sake of easy comprehension, the article has been divided into three parts. The first part defines surrogacy and explains the types of surrogacy, while the second part discusses the (non-existent) legal framework of surrogacy in Nigeria. The third part examines the lawfulness of surrogacy agreements and the enforcement of such agreements.
What is Surrogacy?
Surrogacy can be defined as the practice where a woman (a surrogate) carries a child for another person(s) (the commissioning or intending parents) due to a prior arrangement that the child would be handed over to the commissioning parent at birth4. In simple terms, it involves a woman becoming pregnant and giving birth to a baby for a couple who want to have a child but cannot5. Surrogacy is a form of third-party reproduction in which a woman consents to carry a pregnancy for the intended parent(s) who cannot conceive for medical reasons.6
There are two types of surrogacy viz traditional surrogacy and gestational surrogacy. Traditional surrogacy is a pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, and carries the foetus and gives birth to a child for another person7. Here, the surrogate mother contributes genetically to the conception of the baby by the fertilization of her own eggs via Invitro fertilization. On the other hand, gestational surrogacy which is also referred to as host surrogacy is a pregnancy in which one woman (the genetic mother) provides the egg, which is fertilized, and another woman (the surrogate mother) carries the foetus and gives birth to the child8. In this case, the surrogate mother does not contribute genetically to the conception of the baby, she is strictly the carrier of the pregnancy. Both types of surrogacy are prevalent across the world, including Nigeria. They however give rise to legal issues which can be addressed in a surrogacy agreement.
Legal Framework For Surrogacy In Nigeria
Surrogacy is a method for assisted reproduction that is gaining prominence across the world. Countries like the United Kingdom, South Africa, Greece, and the United States of America have enacted laws for the regulation of surrogacy. For instance, in the UK and South Africa, the Surrogacy Arrangements Act 1985 and Chapter 19 of the Children's Act 38 of 2005 are the legal framework for surrogacy, respectively. In both countries, surrogacy is lawful. However, commercial surrogacy is unlawful in the UK9. The only payments allowed to be made to the surrogate are reasonable expenses, ie. medical bills, compensation for time missed at work and so on. At the child's birth, the surrogate mother is recognized as the child's legal parent and her name is written on the birth certificate. Parties may decide to use a surrogate agreement to vary this term or record how they want the arrangement to be. Unfortunately, a surrogacy agreement is not enforceable under UK law10.
On the contrary, in South Africa, surrogacy agreements are enforceable. The parties to a surrogacy arrangement need to have a written agreement with the surrogate mother, and the agreement has to be made by by an order of the Court (High Court). A surrogate mother is not allowed to receive payment for being a surrogate, other than expenses that she incurred i.e. medical expenses or loss of income due to her not working. This is similar to the UK law on surrogacy. However, unlike the UK, in South Africa, a child/and or children born from a surrogate mother is by law the child of the commissioning parents. The surrogate mother and her partner have no parental rights towards the child11.
Nigeria has no law on surrogacy. The closest Nigeria has come to regulation of surrogacy practice is the Assisted Reproductive Technology (Regulation) Bill 2016.12 Among other things, the Bill provides that both the couple or individual seeking surrogacy through the use of assisted reproductive technology, and the surrogate mother, shall enter into a surrogacy agreement which shall be legally enforceable.13 That Bill has not been passed into law. Regrettably, out of the 36 states in the federation, only Lagos State has a legal framework for the regulation of assisted fertility methods14. It passed the guidelines on Assisted Reproductive Technology in 2019.15 This guideline is only applicable within Lagos state. At the national level, there is no law or guideline regulating surrogacy. Despite this legislative vacuum, surrogacy is widely practiced in the country under legal safeguards such as contractual agreements. The pertinent question now is "Are surrogacy agreements enforceable by the courts?"
The Enforceability of Surrogacy Agreements in Nigerian Courts
Generally, all valid contracts are enforceable while void contracts are unenforceable. A valid contract has the elements of offer, acceptance and consideration. Where a commissioner or intending couple offers money or some benefit to a surrogate mother for the purpose of giving birth to a baby, and the surrogate mother accepts, a contract has taken place. This may be enforced. On the other hand, a contract is void where it is illegal or against public policy. A surrogacy contract (or agreement) may be void and thus unenforceable as it presents the possibility of abuse in the form of: Trade in babies; and Financial and emotional exploitation of surrogate mothers16. It has however been asserted that while the standpoint of morality and public policy may present a contrary view on the enforcement of surrogacy contracts, it does not change the fact that surrogacy contracts fall under legally unenforceable agreements17.
There is no judicial precedents on surrogacy contracts in Nigeria, and many writers are of the opinion that surrogacy contracts are enforceable. In the UK, however, surrogacy contracts are unenforceable. The argument that surrogacy contracts are legally enforceable suggests that surrogacy is lawful in Nigeria. This position is not valid, especially when you consider the fact that until an act or omission is criminalised by a written or federal law, such an act or omission is not unlawful or illegal18. Surrogacy entails an agreement between parties over the renting of womb and the dealing on babies (children). Children (including, unborn and born babies) and their rights are protected in Nigeria by both federal and state laws, including the Child's Rights Act of 1993, Trafficking In Persons (Prohibition) Enforcement And Administration Act, Matrimonial Causes Act, Penal Code, Criminal Code and Child's Right's Laws of states. Hence, offences relating to children are stated and covered in those laws. 19
According to Section 30 Child Rights Act, "No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child". Any body who engages in such commits a criminal offence. This provision clearly frowns at the processes and procedures of surrogacy, which often involves inter alia the agreement to obtain possession of a child subject to some conditions. In commercial surrogacy, surrogate mothers are paid for carrying the pregnancy. Such an agreement may be criminalised in view of Section 30 Child Rights Act. However, in cases where surrogate mothers perform surrogacy without charging or accepting fees, surrogacy may not be criminal.
Further to the above, some provisions of the "Trafficking In Persons (Prohibition) Enforcement And Administration Act"20 contain some useful provisions against the legality of surrogacy. Section 82 of the Act defines Trafficking to include; "... the giving or receiving of payments or benefits to achieve the consent of a person having control over another person or debt bondage for the purpose of placing or holding the person whether for or not in involuntary servitude (domestic, sexual or reproductive) in forced or bonded labour, or in slavery-like conditions, the removal of organs or generally for exploitative purposes. " Exploitation has been defined to include, "... at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, deprivation of the offspring of any person, forced labour or services or practices similar to slavery, servitude or the removal of organs"21. With this, any surrogacy that takes advantage of a surrogate mother, whether by force or deception, is trafficking in human and as such criminal. This is usually the practice in baby factories (centres where girls and women are forced or deceived to get pregnant and bear children for other persons in return for money).22
Conclusion
There is no legal framework regulating surrogacy practice in Nigeria. However, there are laws relating to children and the prevention of trafficking in persons which have useful provisions for the protection of certain actions associated with surrogacy. Accordingly, where a surrogacy agreement is entered into as a trade or for other exploitative purposes, such an agreement is unlawful. This view is in line with the UK stance against commercial surrogacy. However, subject to judicial interpretation, in Nigeria, surrogacy agreements that are not for commercial purposes or exploitation may be enforceable. Nevertheless, until a specific statute on surrogacy is enacted, there will be a never-ending debate on the legality of surrogacy in Nigeria and its enforceability in our courts. It is hereby submitted that the legislature looks into this emerging aspect of medical practice and enact a legal framework that is compatible with international best practices. A good place to start is to revise the 2016 Assisted Reproductive Technology (Regulation) Bill, and pass the same into law.
Footnotes
1 Amy B. Frieder. Trans Parenthood In An Era of Assisted Reproductive Technology: Approaches to Defining Motherhood. Harvard Human Rights Journal. Vol 34. Pg. 157
2 Miracle Eme. Legal Framework for Surrogacy in Nigeria. Available at https://www.mondaq.com/nigeria/family-law/1217952/legal-framework-for-surrogacy-in-nigeria#:~:text=While%20surrogacy%20is%20not%20expressly,framework%20regulating%20surrogacy%20in%20Nigeria. Accessed on March 16th, 2023
3 South Africa - Chapter 19 of the Children's Act 38 of 2005; England - Surrogacy Arrangements Act 1985
4 M., Brazier, S., Golombok, A., Campbell. 1997. 'Surrogacy: Review for the UK Health Ministers of current arrangements for payments and regulation', Human Reproduction Update. 3.6 pp. 623–628. Available at https://academic.oup.com/humupd/article-pdf/3/6/623/1704754/030623.pdf. Accessed on March 16th, 2023.
5 Surrogacy. Available at https://nordicalagos.org/surrogacy/. Accessed on March 16th, 2023.
6 Encyclopaedia of Reproduction (Second Edition) Vol 5. 2018
7 Black's Law Dictionary, 9th ed. p. 1582
8 ibid
9 Section 2, Surrogacy Arrangements Act 1985. Available at https://www.legislation.gov.uk/ukpga/1985/49#:~:text=An%20Act%20to%20regulate%20certain,carrying%20children%20as%20surrogate%20mothers. Accessed on March 20th, 2023
10 Surrogacy: Legal rights of parents and surrogates. Available at
https://www.gov.uk/legal-rights-when-using-surrogates-and-donors#:~:text=Surrogacy%20is%20legal%20in%20the,be%20enforced%20by%20the%20law. Accessed on March 20th, 2023
11 Celeste Synders. Surrogacy and the law in SA . Available at https://www.mondaq.com/southafrica/family-law/1190072/surrogacy-and-the-law-in-sa#:~:text=Surrogacy%20became%20regulated%20in%20the,the%20requirements%20of%20the%20Act. Accessed on March 20th, 2023
12 Available at https://placbillstrack.org/8th/upload/SB325.pdf, Accessed on March 20th 2023
13 Section 34 (1) Assisted Reproductive Technology (Regulation) Bill, 2016
14 Time to Regulate Fertility Medicine. ThisDay Live 23 November 2021. Available at https://www.thisdaylive.com/index.php/2021/11/23/time-to-regulate-fertility-medicine/ accessed on March 18th, 2023
15 LASG UNVEILS GUIDELINES TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY. Available at
https://lagosstate.gov.ng/blog/2019/05/09/lasg-unveils-guidelines-to-regulate-assisted-reproductive-technology/. Accessed at March 19th, 2023
16 Sanni, S.O. Legal Approach to surrogacy in Nigeria. Available at https://www.mondaq.com/nigeria/family-law/840674/legal-approach-to-surrogacy-in-nigeria. Accessed on March 18th, 2023.
17 ibid
18 Section 6, Constitution of the Federal Republic of Nigeria, 1999 (as amended)
19 Onyekachi Umah. Why surrogacy is unlawful in parts of Nigeria? Available at https://thenigerialawyer.com/why-surrogacy-is-unlawful-in-parts-of-nigeria/. Accessed on March 18th, 2023
20 Available at https://www.warnathgroup.com/wp-content/uploads/2017/11/TRAFFICKING-IN-PERSONS-PROHIBITION-NIGERIA-2015.pdf. Accessed on March 20th, 2023
21 Section 82 Trafficking In Persons (Prohibition) Enforcement And Administration Act
22 Onyekachi Umah. Why surrogacy is unlawful in parts of Nigeria? Available at https://thenigerialawyer.com/why-surrogacy-is-unlawful-in-parts-of-nigeria/. Accessed on March 18th, 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
