Surrogacy is the process in which a woman carries and delivers a child for a couple or individual.[i] It can also be described as an arrangement, usually supported by a legal agreement, whereby a woman agrees to the labour/delivery of a child for another person or couple, who then assumes the role of the parent after the child’s birth.[ii]

Surrogacy can be classified into traditional surrogacy and gestational surrogacy. Traditional surrogacy is a pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, carried, and delivered on behalf of another person or couple. On the hand, gestational surrogacy is the process where a person, who did not provide the egg used in conception, carries a fetus through pregnancy and gives birth to a baby for another person or couple. In this case, the gestational carrier is not genetically related to the child.[iii]

Surrogacy may be commercial or altruistic. Commercial surrogacy is one in which the surrogate is paid for carrying the pregnancy and delivering the baby. The surrogacy is altruistic, where a surrogate does not receive any financial compensation for the pregnancy. This usually occurs when there is a familial bond or other close relationship between the couple/person and the surrogate mother.[iv]

Couples or persons usually enter into a surrogacy arrangement where a woman is unable to become pregnant or carry a pregnancy to term or where a woman’s health condition makes pregnancy more dangerous. Thus, when people are unable to conceive a child naturally, they opt for surrogacy.

Despite the increasing need for surrogate arrangements in many countries around the world, Nigeria inclusive, Nigeria does not have any law that specifically regulates surrogacy. It is neither legally acknowledged nor expressly prohibited in Nigeria. Therefore, there’s no legal guide for dealing with surrogacy issues that arise, such as:

• Enforceability of surrogacy agreements, whether commercial or altruistic.
• Issues raised by traditional and gestational surrogacy, such as the parentage of the child. Usually, the legal assumption is that the woman giving birth to a child is that child’s legal mother, and the only way for another woman to be recognized as the mother is through adoption.
• The mechanism for the legal recognition of the intended parents as the legal parents, either by pre-birth orders or by post-birth order.
• The exploitation of women in developing countries like Nigeria, whose wombs are utilized for the reproductive needs of the wealthy and who are often short-changed by middlemen and commercial agencies who collect most for profit rather than the gestational carriers themselves.
• The citizenship and legal status of the children resulting from surrogacy arrangements.

Read also: Custody of children in divorce proceedings; Legal considerations

In Nigeria, the closest attempt to regulating surrogacy is the presentation of the Assistive Reproductive Technology (Regulation) Bill 2016[v], which has not been passed into law. However, Lagos State proactively passed guidelines on Assisted Reproductive Technology in 2019. The Lagos State guidelines cover both clinical and ethical issues surrounding assistive reproductive technology. It makes provision for matters such as surrogacy, the maximum number of embryos, cryopreservation, cross-border treatment, counselling, donation of gametes and embryos, posthumous use of gametes, record keeping, clinical best practices, research, and penalties.

Despite the delay in enacting a legal framework regulating surrogacy in Nigeria, parties interested in entering into surrogacy agreements should ensure that there is a written contract expressly providing for all the rights and obligations of all parties to the agreement. All the requirements for a valid contract must be present to ensure its enforceability. As there’s no law expressly prohibiting surrogacy in Nigeria, surrogacy contracts remain enforceable.[vi]

Furthermore, it is imperative that the commissioning party obtain a custody order in Nigeria to ensure that their parental rights are recognized. The consent of all parties concerned must be obtained before the order is granted.

CONCLUSION

There is a growing number of couples/persons in Nigeria who turn to surrogacy when they encounter challenges in conceiving a child naturally. Therefore, it is imperative that a legislation be enacted to govern surrogacy and other forms of Assisted Reproductive Technology (ART) methods in Nigeria.  Efforts should be made to review the Assistive Reproductive Technology (Regulation) Bill 2016, ensuring compliance with international standards with a view to enacting the bill into law.

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[i]Yale Medicine, Surrogacy https://www.yalemedicine.org/conditions/gestational-surrogacy#:~:text=%E2%80%A2A%20process%20in%20which,%E2%80%A2Involves%20fertility%20center Accessed on January 24, 2023

[ii] Wikipedia, Surrogacy https://en.wikipedia.org/wiki/Surrogacy Accessed on January 24, 2023

[iii] ConceiveAbilities, The Different Types of Surrogacy https://www.conceiveabilities.com/about/blog/the-different-types-of-surrogacy#:~:text=There%20are%20two%20types%20of,pros%20and%20cons%20to%20weigh. Accessed on January 24, 2023

[iv] Ibid

[v] http://www.parliament.go.ke/sites/default/files/2017-05/The__Assisted_Reproductive_Technology_Bill.pdf

[vi] Miracle Eme, Nigeria: Legal Framework for Surrogacy in Nigeria 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 January 24, 2023

Written by Omolumo Adeife for The Trusted Advisors

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