Surrogacy can simply be defined as the process or arrangement where a woman (a surrogate) carries a child for another person (intending parents) with the intention of handing over the child to the intending parents once the child is born. [i]
There are two types of surrogacies that are used. In traditional surrogacy, the surrogate mother is the child’s biological parent. Here, in-vitro fertilization (IVF) is typically used to combine the intended father’s semen with the surrogate’s eggs to create the baby. In gestational surrogacy, commonly referred to as host surrogacy, the surrogate simply acts as the child’s carrier. [ii]This implies that another donor’s eggs (can be the intended mother or someone else) are utilized in place of her own as she does not contribute genetically to the child’s conception. [iii]
Currently, there is no legal framework governing surrogacy in Nigeria. There have been some examples of successful surrogacy stories in Nigeria as reported in ‘A successful gestational surrogacy in South East Nigeria’ (The African Journal for Infertility and Assisted Conception).[iv] Surrogacy is also becoming popular with Nigerian celebrities, with the likes of people like Ini Edo[v] using a surrogate. In Nigeria, especially Lagos and Abuja there are agencies that act as a bridge between surrogates and intending parents in exchange for a fee.[vi] Usually, they assist in drafting or facilitating the surrogacy contract between the parties.
Since there are no particular laws governing surrogacy, the question of whether these contracts are valid and enforceable in Nigerian courts arises. Surrogacy contracts, like all other contracts, must include the three essential components of a contract—offer, acceptance, and consideration—in order to be valid and enforceable. Some schools of thought believe that since surrogacy is not explicitly mentioned to be illegal in our laws, then such agreements would be considered lawful.[vii] Others believe that in accordance to the provisions of the Child Rights Act, it should be considered unlawful.[viii]
Going by the definition of surrogacy, it would appear that Section 30(1) of the Child Rights Act that prohibits the buying, hiring, and selling of a child makes surrogacy unlawful.[ix]Although not explicitly stated, it is unclear whether the legislators considered surrogacy when they were drafting this section.
The court’s ability to enforce surrogacy agreements may be influenced by morality and public policy. Anti-surrogacy laws may be advocated for in order to deter miscreants from using it for their personal financial advantage, such as trading babies or abusing surrogate mothers, rather than using it for the good of humanity.
In April 2022, news emerged about one Gift Solomon a surrogate who agreed to a traditional surrogate arrangement for her aunty, however, no written surrogacy agreements were made, instead informal arrangements regarding each party’s responsibilities were agreed upon. She claims, among other things, that the intended parents abandoned their five children and her unborn babies, which made her, resolve to not hand over the twins to them when they were born. She further alleges that there have also been numerous threats upon her life and her family members have been arrested as a result. It remains an ongoing matter and it is unknown if the surrogate plans to pursue legal action.[x] If it ends up in the Nigerian courts, it would be interesting to see the attitude of the court towards adjudicating on surrogacy matters. The aforementioned incident exemplifies the kinds of legal issues that will persist and emerge more regularly in our society as long as surrogacy remains unregulated.
One challenge with the absence of regulatory laws on surrogacy is an upsurge of baby factories where vulnerable young girls and women are exploited, and forced to conceive and the babies are sold at the black market to desperate childless couples.[xi]
In April 2017, the Assisted Reproductive Technology Bill (2016) scaled through for second reading. This Bill stipulates that the intended parents and the surrogate are required to enter legally into a surrogacy agreement. It further provides that pregnancy-related, insurance and post-natal costs should be covered by the intended parents. In addition to being granted adequate compensation by the intended parents, the surrogate must also relinquish all parental rights to them. The intended parents must accept the child regardless of any abnormalities. Additionally, arrangements for cross-border surrogacy are covered by this bill.
Despite the fact that Nigerian laws do not currently provide the necessary legal framework, successful surrogacies have been performed.
It is important to adopt the 2016 Assisted Reproductive Technology Bill into law because it will assist and safeguard surrogates from exploitation, and ensure that the agreements are easier to enforce in Nigerian courts. The legislature and judiciary must also consider what the best interest of the child is vis a vis the surrogate and the intended parents when developing a robust legal regulatory framework.
[i] www.surrogacy.com <accessed 6th July 2022 >
[ii] https://nordicalagos.org/surrogacy/ <accessed on 5th July 2022>
[iii] A.B Ajayi , Victor Ajayi, (2018) ‘ Gestational Surrogacy in Nigeria’ accessed at https://www.researchgate.net/publication/323907314 Gestational Surrogacy in Nigeria
[iv] J.I Ikechebelu, Kennedy Ibadin, Ngozi N Ikechebelu, L.A Nwajiaku, K Nwaefulu, S.I Okwelogu, (2017) ‘ A successful gestational surrogacy in South East Nigeria’ accessed at African Journal for Infertility and Assisted Conception on 6th July 2022. Available online at: https://www.afrijiac.org/article.asp?issn=2468-8452;year=2017;volume=2;issue=1;spage=19;epage=22;aulast=Ikechebelu
[v] Ini Edo is a popular Nigerian actress that recently welcomed a child from a surrogate. Accessed on 4th July 2022 .Available at https://www.premiumtimesng.com/entertainment/nollywood/498871-why-i-chose-to-welcome-my-baby-via-surrogacy-ini-edo.html
[vi] Surrogacy agencies have been established in Nigeria. One of them will include Meet Surrogate Mothers Agency Limited, Available at https://meetsurrogatemothers.com/
[vii] Sarah Onyeche Sanni, ‘Legal approach to surrogacy in Nigeria’, https://www.mondaq.com/nigeria/family-law/840674/legal-approach-to-surrogacy-in-nigeria? Accessed 2nd July 2022
[viii] Unini Chioma, ‘Why surrogacy is unlawful in parts of Nigeria’, https://thenigerialawyer.com/why-surrogacy-is-unlawful-in-parts-of nigeria/#:~:text=The%20Child%20Rights%20Act%20and%20Child%20Rights%20Laws%20in%20Nigeri accessed on 2nd July 2022
[ix] Section 30 (1) of the Child Rights Act, ‘ No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child’.
[x] US based couple accuses Nigerian surrogate mother of absconding with twins, https://www.premiumtimesng.com/news/top-news/522663-us-based-couple-accuses-nigerian-surrogate-mother-of-absconding-with-twins.html accessed on 3rd July 2022
[xi] Dr E.M Akpambong, M.A Akomolafe, ‘ Legal Position on surrogacy arrangements in Nigeria & some selected jurisdictions’ International Journal of Research in Humanities & Social Studies Volume 7 Issue 3 2020 ISSN 2394-6296 accessed on 4th July 2022