In recent weeks, Nigeria's social media space has been ablaze with debates on women's reproductive autonomy, bodily rights, and access to assisted reproductive technologies. At the heart of this conversation lies a topic once considered a taboo: surrogacy. As fertility challenges become increasingly common and more women and families seek alternatives, surrogacy is emerging as a vital but controversial pathway. However, in Nigeria, the legal landscape around surrogacy remains complex and largely underdeveloped.
What is Surrogacy?
Surrogacy is a method of assisted reproduction where a woman (called a surrogate mother) agrees to carry and give birth to a child for another person or couple, known as the intended parents, who hand over the child after birth. Surrogacy can be either altruistic, in which the surrogate receives no financial compensation beyond reasonable expenses, or commercial, in which the surrogate is compensated for her role.
Surrogacy can be traditional (genetic or partial) or gestational (full surrogacy). In traditional surrogacy, the surrogate mother's egg is fertilized by the intended father's sperm, either through artificial insemination or, in rare cases, sexual intercourse, making the surrogate the genetic mother of the child. Conversely, gestational surrogacy involves the implantation of an embryo created through in vitro fertilization (IVF) using the egg and sperm of the intended parents or donors. In this case, the surrogate has no genetic connection to the child.
Surrogacy is usually attempted by individuals or couples who are unable to conceive or carry a child due to infertility, pregnancy-related health problems, or other causes. It is also attempted by individuals or couples who prefer preserving the woman's physique to experiencing the body transformation, including the emotional and psychological demands associated with childbirth. It is a practice involving sophisticated medical procedures, emotional difficulties, and legal consequences that necessitate a thorough understanding and adherence to applicable laws and rules. Surrogacy laws and regulations differ widely among jurisdictions, creating complex legal, ethical, and medical issues.1
The Legal Vacuum
Nigeria currently lacks a comprehensive federal legal framework explicitly recognizing or regulating surrogacy. While surrogacy isn't expressly criminalized, it also isn't codified in law, leaving prospective parents and surrogate mothers to rely on private contracts and the goodwill of the courts. This legal ambiguity raises questions around enforceability, ethical boundaries, and child welfare.
Lagos State remains the only jurisdiction with some semblance of regulation via its Assisted Reproductive Technology (ART) Law, which outlines licensing and ethical guidelines for fertility clinics, including limited provisions for surrogacy. However, the law stops short of regulating the contractual relationship between surrogate and commissioning parents, leaving many critical issues unresolved.
The Risks of an Unregulated System
Without legal clarity, commercial surrogacy, where a woman is paid beyond medical costs for carrying a child, teeters dangerously close to potential criminal interpretations. The Child Rights Act (2003) (Also the Child Rights laws of various states) and the Trafficking in Persons (Prohibition) Enforcement and Administration Act could be triggered if authorities view the transaction as exploitation or child commodification.
In the absence of statutory protection, women acting as surrogates face risks ranging from exploitation to abandonment. Similarly, commissioning parents risk being denied custody of a child they lawfully intended to raise if the surrogate revokes consent, and courts are hesitant to uphold informal agreements.
Achieving Surrogacy Legally in Nigeria
In the absence of codified national laws, Nigerians considering surrogacy should adopt the following legal and ethical steps:
1. Engage Reputable Fertility Clinics: Preferably those operating under Lagos State's ART Law.
2. Draft a Robust Surrogacy Agreement:
1. Include provisions on consent, medical obligations, compensation (limited to reimbursement), parental rights, and dispute resolution. Engage legal professionals experienced in family law to draft and review the contract.
- Avoid Commercial Surrogacy: Reimburse only actual medical and living expenses to reduce legal exposure under child protection or trafficking laws.
- Obtain Court Recognition:
A post-birth adoption or declaration of custody by the Family Court is required to ensure legal parentage of the parents.
- Ensure adequate Medical Screening:
Both parties should undergo psychological evaluations and consent-based medical assessments to meet ethical standards.
Legislative Developments
Encouragingly, a 2024 Surrogacy Regulation Bill has passed its second reading in the National Assembly. The bill proposes to:
- Establish a Nigerian Surrogacy Regulatory Commission,
- Permit only altruistic surrogacy,
- Mandate written agreements and medical oversight,
- Prohibit commercial arrangements and trafficking-related exploitation.
If passed, this law would finally offer clarity, structure, and protection to all parties involved, while advancing Nigeria's obligations under reproductive rights frameworks.
Conclusion
As Nigeria grapples with questions of reproductive freedom, surrogacy should no longer be treated as a moral taboo or legal afterthought. Instead, it should be addressed as a matter of reproductive justice, framed by human dignity, bodily autonomy, and legal accountability. It is time for Nigeria's legal system to catch up with science, society, and the lived realities of the reproductive issues faced in Nigeria.
Footnote
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.
