Serah Onyeche Sanni1
Surrogacy is 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 birth.2 Surrogate motherhood refers to a situation where by a third party female elects or is commissioned to carry a pregnancy on behalf of another couple, delivers a baby and hands over to the commissioning parent at birth.3 Typically, two (2) kinds of surrogacy are discernible depending on the existence or not of the genetic link between the surrogate mother and the fetus; traditional surrogacy and gestational surrogacy.
Traditional surrogacy is the practice where the surrogate mother contributes genetically to the conception of the baby by a fertilization of her own eggs via In-Vitro fertilization (IVF) process (i.e. artificial insemination of the surrogate's egg with the commissioning father's semen).4 In contrast, gestational or host surrogacy takes place when the surrogate mother does not contribute genetically to the conception of the baby. Here, the surrogate is strictly the carrier of the pregnancy5. This means that a prior fertilized egg (embryo) is implanted into the uterus of the surrogate and the surrogate carries the pregnancy to full term.
The subject of surrogacy is a unique one and most countries do not have a uniform legal stand on the concept. It may be argued that the sensitive nature of this procedure has affected the way it is viewed and accepted in different societies. This no doubt is an emerging area in some jurisdictions which the law is yet to address sufficiently. Also, a number of legal and social questions have stirred up from the existing laws that attempt to address it. There exists a nagging question of whether a woman's ability to make decisions concerning her own body should include the right to extinguish her parental responsibilities to a child born by her on the basis of a contract agreement. This issues touches on a range of legal concerns including; human rights, reproductive rights morality, public policies, infant rights, rights of children, parental responsibilities & rights.
The Concept of Surrogacy in Nigeria
There is currently no legal framework regulating surrogacy in Nigeria; however there exist a system of arranged third party reproduction prevalent in the country. The Pro-Natalist nature of the traditional African society where procreation is termed invaluable have no doubt contributed to the slow acceptance rate in the conduct of surrogacy as well as the possible build-up of a regulatory frame work. Current investigation revealed the practice of surrogacy in some parts of the country, although the legitimacy of such acts remains debatable considering the non-existence of any law or judicial pronouncement on the said activity.
The concept of surrogacy, although yet to be legally provided for under the Nigerian laws, remain practiced within our shores. In fact a successful gestational surrogacy was reported in the African Journal for Infertility and Assisted Conception of a "35-year-old married graduate trader with primary infertility of 7-year duration due to Mullerian dysgenesis" in south-eastern Nigeria.6 There also exist some privately organized agencies that engage in consensually organized conduct of surrogacy in the country, they do this by serving as the middle ground between the surrogate mother and the commissioning parent. They render the service of bringing parties together through a signed contract agreement. Of course, these agencies operate based on some form of fees payable by parties involved. An example of such agency is "Meet Surrogate Mothers Agency Limited". This registered agency operates as an organization that handles surrogacy arrangements in Lagos, Nigeria. There are also similar others which operates in Abuja and other states within the country.
As generally observed, surrogacy agreements in Nigeria are based on simple contract terms; the concern therefore is whether such contracts birthed for the purpose of surrogacy can be enforced in our national courts. 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. Irrespective of this, some states like California makes surrogacy contracts specifically enforceable while others have been seen to place a band on it. It is also argued in some portals that surrogacy contracts should falls under the category of unenforceable contracts, this argument emanates from the morality attached to the act of surrogacy.7 M.A Field in his work argued from the perspective that certain contracts may not be sufficiently voluntarily entered into to deserve enforcement. Building up on this, he further based his argument on the high tendency of such agreement being exploited against the vulnerable classes.8 It has been observed from most parlance that popular critic on the enforceability of surrogacy agreement are majorly interconnected to moral justification, humanity, financial gain etc. Most anti-surrogacy legislations are promulgated to avoid its abuse, to prevent the exploitation of women, children, poor and the vulnerable class. The exploitative aspect of surrogacy agreements is linked to the commercialization of surrogacy as opposed to the act being carried out for the purpose of humanity.
Like most jurisdictions, in Nigerian, once a contract satisfied the required element, it becomes enforceable. Although there is no law or statute regulating the act of surrogacy in Nigeria, its contracts and agreements remain enforceable. The standpoint of morality and public policy may present a contrary view on the enforcement of surrogacy contracts; it however does not change the fact that surrogacy contracts falls under legally enforceable agreements. Thus, to say the least, it may be suggested that enactments through legislative intervention is needed to help curb possible abuse or exploitation of the procedure. Thus the need for a legal frame works to ensure appropriate regulation.
The Nigerian society is still conservative in this area and it is reflective in the kinds of laws which exist on related issues. Nigeria, been known to have gotten some of its legal cues from the United Kingdom, and considering the existing surrogacy law in the United Kingdom9, prediction points to the possibility that surrogacy agreements may be enforced in our national courts when put to judicial test. From another view, the concept of void contracts under Nigerian law which considers a contract to be void if it is illegal or against public policy may also come into play in affecting the enforceability of surrogacy contracts. It could be argued that such contracts are contrary to public policy as they present the possibility of abuse in the form of:
- Trade in babies;
- Financial and emotional exploitation of surrogate mothers;
There are whispers of a 2016 surrogacy bill being presented to the National Assembly, although no statute has emerged from this. Research conducted by the Association for Fertility and Reproductive Health (AFRH) of Nigeria, a non-governmental association of assisted reproductive technology (ART) providers concluded that the absence of a law regulating ART in Nigeria have largely contributed to the growing unethical practices.10 Respondents to the research believed that a law regulating ART in Nigeria would improve the standards of practice, monitor ART agencies and ensure that all participants abide by the law. This would definitely curb the existence of baby factories and exploitation of both surrogate mothers and commissioning parents. A statute that seeks to regulate surrogacy must therefore be structured to combat such abuse.
The process of surrogacy as we know is one that should not be treated like simple contracts because different lives are affected in the process, particularly the life of the unborn child who was not a party to the contract, and is certainly affected by the result of the agreement. The unique nature of human reproduction should take into account the right of a surrogate mother to change her mind as well. Financial loss or gain should not be the deciding factor because it is the place of the law to protect the public by implementing policies that do not detract from fundamental human rights. The Supreme Court of New Jersey in Re Baby M invalidated surrogacy contracts citing public policy concerns. That case upheld the surrogate mother's rights however, custody was granted to the biological father of Baby M. The decision was based on a custody decision that was in the best interest of the baby as opposed to the contractual rights of the commissioning parents.
In developing and maintaining a legal regulatory frame work and a holistic practice of surrogacy in Nigeria, the legislature and the judiciary in developing and enforcing decisions should bare in mind the best interests of the babies born as much as the interests of the parties to the contract.
1 PhD Candidate, University of Abuja, FCT, Abuja, Nigeria
2 M., Brazier, S., Golombok, A., Campbell, 'Surrogacy: review for the UK Health Ministers of current arrangements for payments and regulation', Human Reproduction Update 1997, Vol. 3, No. 6 pp. 623–628 accessed at https://academic.oup.com/humupd/article-pdf/3/6/623/1704754/030623.pdf
3 C L Chang, Surrogate Motherhood Formos J Med Humant 2004;5;48-62
4 A. B., Ajayi, & V. D. Ajayi, (2018) 'Gestational Surrogacy in Nigeria', accessed at https://www.researchgate.net/publication/323907314_Gestational_Surrogacy_in_Nigeria
6 J.I., Ikechebelu, K., Ibadin, N.N., Joe-Ikechebelu, L.A., Nwajiaku, K., Nwaefulu, S.I., Okwelogu. "A successful gestational surrogacy in Southeast Nigeria", African Journal for Infertility and Assisted Conception [serial online] 2017 [cited 2019 Jul 29];2:19-22. Available from: http://www.afrijiac.org/text.asp?2017/2/1/19/241009
7 M.A. Field '' The case against enforcement of surrogacy contracts, Law School Havard University, Politics and Life Science 1990, Cambridge University Press.
9 Surrogacy Arrangement Act 1985 and The Human Fertilisation and Embryology Act 1990
10 P.R., Okonta, R., Ajayi, K., Bamgbopa, R., Ogbeche, C.C., Okeke & K., Onwuzurigbo, "Ethical Issues in the Practice of Assisted Reproductive Technologies in Nigeria: Empirical Data from Fertility Practitioners", African Journal of Reproductive Health, September 2018; 22 (3):51, DOI: 10.29063/ajrh2018/v22i3.6, available file:///C:/Users/Default.Default-PC/Desktop/afrh%20art%20regulation.pdf accessed on 29th July 2019.
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