LEGAL FRAMEWORK FOR SURROGACY IN NIGERIA1
With the increase in infertility rates all over the world,2 more and more couples are looking into the use of Assisted Reproductive Technology (ART) methods, such as surrogacy, to enable them become parents. 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 reprieve. Nigerian couples facing infertility are not left out of the mix in all of this, as in recent years, many have embraced the option of surrogacy.
As surrogacy becomes more widespread, many countries have enacted legislations to regulate surrogacy.3 Nigeria is not one of these countries, as although the country does not prohibit surrogacy, it has not laid down any legal framework to govern the surrogacy process. This leaves both the couple and the intending surrogate mother in a legal vacuum, wherein the parties are exposed to legal risks.
This article briefly considers the Nigerian legal stance regarding surrogacy and proposes a creation of a clear legal framework for surrogacy in Nigeria, while advising as to legal safeguards to be taken by couples intending to conceive via surrogacy in the interim.
2. What is Surrogacy?
Surrogacy is a form of third-party reproduction in which a woman consents to carry a pregnancy for intended parent(s) who cannot conceive for medical reasons.4 Surrogacy may also be defined as an arrangement (often backed by law) in which a woman (the surrogate) agrees to assume responsibility for the pregnancy-related labour and delivery of a child on behalf of another person or couple (the intended or commissioning parent(s)).5 In summary, surrogacy is the process of carrying and delivering a child for another.
Surrogacy is usually based on the agreement that the child will be given to the commissioning parents after delivery and may be classified into two types: 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 person.6Here, the surrogate mother contributes genetically to the conception, and is both the biological and gestational mother of the child. 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 child.7 In this instance, the surrogate mother does not contribute genetically to the conception of the child and is strictly the carrier of the pregnancy i.e., gestational mother. Both types of surrogacy are now commonplace in Nigeria, though gestational surrogacies are becoming the more popular option due to legal challenges such as the identity of the rightful mother often arising in traditional surrogacy.8
Additionally, surrogacy may be commercial or altruistic, depending upon whether the surrogate receives financial reward for her pregnancy.9 In case of altruistic surrogacy, a surrogate does not receive any monetary compensation and majority of these agreements often involve close relatives of the intended parents.10 Many countries frown upon commercial surrogacy, and only permit altruistic surrogacy arrangements.11
3. Lack of Legal Framework for Surrogacy Agreements in Nigeria and its Conversant Risks
While surrogacy is not expressly prohibited in Nigeria, it also is not legally acknowledged, as there is currently no legal framework regulating surrogacy in Nigeria. Unlike many other countries, Nigeria lags behind in surrogacy agreement regulation, which is disappointing considering the increasing number of surrogacy agreements entered into on a daily basis in the country.
The closest Nigeria has come to regulation of surrogacy is the presentation of the Assistive Reproductive Technology (Regulation) Bill 2016.12 Regrettably, till date, that Bill has not been passed into law. Only Lagos State has passed guidelines on Assisted Reproductive Technology in 2019,13 the remaining 35 states in Nigeria and the Federal Capital Territory are yet to enact any legislation to regulate assisted fertility methods.14
Despite this, surrogacy has not been criminalized in Nigeria, since it is not defined in any written law as an offence and no punishment is prescribed for it.15 As such, if a person engages in surrogate motherhood or enters into a surrogate contract in Nigeria, such a person cannot be said to have committed a crime. The underlying problem, however, is in terms of legally defining the legal parentage of the child as well as the contractual rights and duties of parties to the surrogate agreement.16
In April 2022, a National Daily carried the story of a US-based couple who had accused their Nigerian surrogate of absconding with twin baby boys, that were the products of their surrogacy agreement. The surrogate, through her lawyer, however narrated a different tale, alleging that the couple had abandoned her during her pregnancy, causing her to be unable to foot the medical bills of the babies. This motivated her decision not to hand over the babies to the couple after their birth.17
The above case is an example of what happens when agreements happen in vacuo, without any underpinning law, statute or regulation. There are many other cases like this in Nigeria, which could have been preventable if a regulatory law and framework were in place. In any event, it is doubtful that the referenced case involved any legal agreement between the surrogate and the couple, as the agreement was based on their familial relationship. Thus, if there were any extant laws governing surrogacy in Nigeria, it is doubtful that this agreement would have been protected.
4. Legal Safeguards for Entering and Enforcing a Surrogacy Agreement
While efforts to enact a legal framework continue in Nigeria, parties interested in entering surrogacy agreements are advised to take certain safeguards in the interim.
Firstly, parties should ensure they have a written contract in respect of the surrogacy, delineating all rights and obligations of each party. Surrogacy agreements are like regular contracts and can be enforced accordingly since there is no law prohibiting the contract. Amidst other requirements, most contracts require two key elements to make them valid and enforceable: All parties must be in agreement (based on an offer and acceptance), and something of value must be exchanged to serve as a consideration. Like most jurisdictions, in Nigeria, once a contract satisfies the required elements, it becomes enforceable. Thus, although there is no law or statute regulating the act of surrogacy in Nigeria, surrogacy contracts and agreements remain enforceable.18
However, a major concern is whether surrogacy contracts can be enforced in our national courts, based on public morality and policy grounds. However, it has 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 enforceable agreements.19 Thus, in the event of a botched surrogacy agreement, parties may seek legal recourse in a court of law. In a nutshell, there is a good possibility that surrogacy agreements may be enforced in our national courts when put to judicial test.
Additionally, after the birth of the baby, the commissioning couple should consider obtaining a custody order in Nigeria to be certain their parental rights are recognized.
There is a pressing need for Nigeria to enact legislation regulating surrogacy and other forms of Assisted Reproductive Technology (ART) methods, to curb possible abuse or exploitation of these procedures. A first step would be to remodel the erstwhile 2016 ART Bill, to enact a legal framework for surrogacy which is compatible with international best practices and ensure the Bill's passage.
1. Miracle Eme, Associate, SPA Ajibade & Co, Lagos, Nigeria.
2. Swan S.H., & Colino S., 'Reproductive Problems in Both Men and Women Are Rising at an Alarming Rate', Scientific American, 16th March, 2021, available at https://www.scientificamerican.com/article/reproductive-problems-in-both-men-and-women-are-rising-at-an-alarming-rate/ , accessed on 24th June 2022.
3. In England, surrogacy is regulated by the Surrogacy Arrangements Act 1985; in South Africa, by Chapter 19 of the Children's Act 38 of 2005; In Greece, by Law 3305/2005 - Enforcement of Medically Assisted Reproduction; in Israel, by Embryo Carrying Agreements Law 1996, in Hong Kong, it is regulated by Human Reproductive Technology Ordinance 2000; and in Russia, it is regulated by Articles 51-52 of the Family Code of Russia and Article 16 of the Law on Acts on Civil Status.
4. See Encyclopedia of Reproduction (Second Edition), Vol 5., 2018.
5. See https://www.varta.org.au/surrogacy/surrogacy-explained accessed on 24th June 2022.
6. Black's Law Dictionary, 9th ed. p, 1582.
8. See https://nordicalagos.org/surrogacy/ accessed on 24th June 2022.
9. Saxena P, Mishra A & Malik S., 'Surrogacy: ethical and legal issues', Indian J Community Med., Oct. 2012 ;37(4):211-3., available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3531011/ accessed on 24th June 2022.
10. 'Surrogacy Market 2021: Global Industry Size, Share, Business Growth, Revenue, Trends, Global Market Demand Penetration and Forecast to 2027', available at https://www.taiwannews.com.tw/en/news/4384986, accessed on 24th June 2022.
11. In jurisdictions like Belgium, Netherlands, and the United Kingdom, commercial surrogacy is prohibited. Conversely, in France, Italy and Germany, surrogacy, be it altruistic or commercial, is prohibited.
12. See, https://placbillstrack.org/8th/upload/SB325.pdf, accessed on 24th June 2022.
13. See https://lagosstate.gov.ng/blog/2019/05/09/lasg-unveils-guidelines-to-regulate-assisted-reproductive-technology/ accessed on 24th June 2022.
14. 'Time to Regulate Fertility Medicine', ThisDay Live, (Lagos: 23 November 2021) available at https://www.thisdaylive.com/index.php/2021/11/23/time-to-regulate-fertility-medicine/ , accessed on 21st June 2022.
15. See, Section 36 (12), Constitution of the Federal Republic of Nigeria 1999. Some writers have argued that surrogacy is criminal in certain parts of Nigeria by virtue of Section 30 of the Child Rights Act which provides that: "No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child". However, there is no court decision enforcing this provision.
16. O.S. Adelakun, 'The concept of surrogacy in Nigeria: Issues, prospects and challenges' (2018) 18 African Human Rights Law Journal, p. 605-624, available at: http://dx.doi.org/10.17159/1996-2096/2018/v18n2a8 accessed on 24th June 2022.
17. 'US-based couple accuses Nigerian surrogate mother of absconding with twins', Premium Times,
(Lagos: 8 April 2022), available at https://www.premiumtimesng.com/news/top-news/522663-us-based-couple-accuses-nigerian-surrogate-mother-of-absconding-with-twins.html, accessed on 27th June 2022.
18. Sanni, S, 'Legal Approach to Surrogacy In Nigeria', available at: https://www.mondaq.com/nigeria/family-law/840674/legal-approach-to-surrogacy-in-nigeria , accessed on 27th June 2022.
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