Surrogacy, a form of third-party reproduction arrangement where a woman consents to carry a pregnancy for intended parents who cannot conceive is becoming a big industry in Nigeria though it is usually based on agreements because there is no broad legal framework regulating surrogacy in Nigeria. YEJIDE GBENGA-OGUNDARE in this report looks at how surrogacy agreements are enforced to avoid breach in the face of lacking legislative frameworks.
Surrogacy, a kind of assisted reproduction for those who are unable to have children on their own for various medical reasons is simply a procedure in which a woman, known as the surrogate or gestational carrier, agrees to carry and give birth to a child for another individual or couple who are intended parents. The surrogate carries the pregnancy and gives birth to the child, with the intention of passing it on to the intended parents following delivery.
In some situations, surrogacy can be altruistic and the surrogate receives no financial compensation beyond reasonable expenses and in this situation, the surrogate is usually a family member. Surrogacy can also be commercial where the surrogate is compensated for her role.
The commercial surrogacy is the most common now and widely accepted. But because it has become a big industry in Nigeria, it has raised the risk of exploitation and breach. Also, it is a practice involving sophisticated medical procedures, emotional difficulties and legal consequences that necessitate thorough understanding and adherence to applicable regulations.
There are two types of surrogacy: traditional surrogacy which involves using the surrogate’s egg for conception, mainly by intrauterine insemination (IUI) and is less popular because of its legal and emotional difficulties and the second one, gestational surrogacy which involves a woman carrying and giving birth to a child generated by in-vitro fertilization with the gametes of one or both intended parents, without the gestational surrogate’s genetic contribution; this involves creating an embryo using an infertile woman’s egg and sperm and implanting it in a surrogate mother.
And while surrogacy laws and regulations differ among jurisdictions, creating complex legal, ethical, and medical, it is largely unregulated in many communities, especially in places where there is dispute over how it should be governed especially where there are no specific rules.
In Nigeria, surrogacy is not prohibited but there is no established legal framework for regulating the surrogacy procedure. This lack of formal legislation governing the practice places both the couple and the intended surrogate mother in a legal limbo and exposes both parties to legal dangers as there are arguments on how enforceable surrogacy contracts and agreements are in Nigeria.
And while there is no legislation governing surrogacy procedure in Nigeria, the procedure is not illegal and surrogacy contract is enforceable though it is based on agreement; it is considered a contract that includes the fundamental parts of an offer and acceptance and it is enforceable once this criteria is met; this means that in the event of a violated surrogacy arrangement, the parties may seek legal redress in a court of law.
Are there legal frameworks governing surrogacy in Nigeria?
At present, there is no specific or broad legal framework regulating surrogacy in Nigeria and this is a cause of concern as it is responsible for a lot of uncertainty and hurdles in surrogacy arrangements. It has raised arguments on whether surrogacy agreements are valid and enforceable to the extent of fighting for enforcement in a court of competent jurisdiction.
Some believe that the lack of surrogacy-specific laws in Nigeria is not a hindrance to enforcement of agreement; they believe that since surrogacy is not explicitly prohibited, surrogacy contracts can be enforceable based on general contract law principles of offer, acceptance and consideration.
But some argue that unregulated surrogacy violates Section 30 of the Child Rights Act which prohibits buying, selling or dealing in children and Section 13 of the Trafficking In Persons [Prohibition] Enforcement And Administration Act (TIPPEA Act) criminalizes all types of human trafficking and section 50 of the National Health Act which prohibits manipulation of any genetic material.
While Nigeria lacks a legal framework for surrogacy, there are professional rules and standards that regulate the practice. Order 23 of Code of Medical Ethics in Nigeria makes provisions for assisted conception and related practices. It provides to the effect that high-technology-based human reproductive processes are now being employed by registered practitioners in Nigeria and in the absence of statutes to govern desirable surrogacy practices in the Nigerian society; practitioners try to use ethical considerations to ensure best practices.
And there are calls for review of ethical considerations in the area of monetary payments in view of connotations of selling and commercialising in the early form of human life
Nigeria tried to regulate surrogacy with the presentation of the Assisted Reproductive Technology (Regulation) Bill in 2012 but the bill has not been passed and this leaves a vacuum in the legal protection and regulation of surrogacy contracts. The lack of surrogacy regulation in Nigeria creates a risk and makes parties vulnerable
A Bill for the establishment of a Nigerian Assisted Reproduction Authority to regulate this practice was presented before the National Assembly and read for the second time on May 2, 2012. It was referred to the Committees on Health and Justice at the time. And till now, it has not been passed into law.
There are exceptions to this vacuum however; Lagos State has a standard guideline on Assisted Reproductive Technology which it introduced in 2019,
Is a surrogacy contract enforceable under Nigerian law?
A surrogate agreement, also known as a surrogacy contract, is a legal document that states all parties’ rights, obligations, and expectations in a surrogacy relationship. And it is enforceable. The Nigerian legal system permits the enforcement of contracts once it meets specific requirements. So, surrogacy contracts are considered with the same respect and consideration as other legally binding transactions.
Surrogacy contracts are based on mutual consent and the exchange of value, which are essential for their validity and enforceability because these agreements are recognised under general contract law principles, which mean that once the contract includes a clear and definitive offer, acceptance, and consideration, it becomes valid and enforceable.
A surrogate contract entered into through threat, coercion, or deception, or terms that are impossible to fulfill by either party, like any other contract, will not be enforced by the court. It is important to note that commercial surrogacy contracts, in which the surrogate is compensated, are seen differently across jurisdictions, with some equating them to the sale of children, which is both legally and ethically objectionable.
Surrogacy agreements are legally enforceable once they meet the requirements of a valid contract. If there are any complications with a surrogacy contract, the parties involved have the right to seek legal redress and possibly have their case heard and decided in court.
Legal Safeguards
Though there is yet to be a legal framework for surrogacy, interested parties going into such agreements can follow some steps to safeguard themselves: parties should ensure they have a written contract in respect of the surrogacy, highlighting all rights and obligations of each party.
The contract must have these two elements to make it valid and enforceable; parties must be in agreement and there must be obvious offer and acceptance while something of value must be exchanged to serve as a consideration.
There is however concern that surrogacy contracts may have challenges being enforced in the courts based on public morality and policy grounds but in spite of this, surrogacy contracts fall under legally enforceable agreements and in the event of a breach, parties may seek legal recourse in a court of law.
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.
Recently, the Managing Director, Nordica Fertility Centre, Dr. Abayomi Ajayi raised the alarm that lack of regulation of the branch of science was having a field day in the country. He said “More than 60 percent of people offering IVF service in the country do not have the facilities but due to the perceived financial benefits and patronage, doctors and health workers who know little or nothing about IVF have continued to take advantage of couples in need by offering services. I am calling for the strengthening of regulations in this area of medicine.”
As part of efforts to ensure regulation, some practitioners in Nigeria formed the Association for Fertility and Reproductive Health (AFRH) to produce ethical guidelines that would govern the practice of assisted conception in the country but they cannot enforce these guidelines. This is why stakeholders continue to call for legislations from the National Assembly and the state Houses of Assembly to properly regulate the sector.
A legal practitioner, Foluso Olapo said, “Surrogacy as a kind of assisted reproduction is not prohibited in Nigeria neither is there any known law regulating its procedure. For ease of understanding, surrogacy is a procedure in which a woman, known as the surrogate or gestational carrier, agrees to carry and give birth to a child for another individual or couple, known as the intended parents.
“The surrogate carries the pregnancy and gives birth to the child, with the intention of passing it on to the intended parents following delivery. 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.
“However, surrogacy agreement is enforceable in Nigeria as long as the agreement meets the legal requirements of a valid contract, such as offer, acceptance, consideration and intention to create legal relation. This means anyone that is interested in surrogacy in Nigeria must have a water-tight agreement spelling out explicitly all its terms to avoid story that touches the heart,” he added.
A former chairman of the NBA, Ikeja branch, Dave Ajetomobi said in the Nigerian society, fertility is not just about health, it is a serious social issue that requires every attention it deserves. He added that “the NBA is working on the guidelines at the national level holding seminars and symposia. There’s also a proposal before the National Assembly which the NBA is working with them presently.
Miracle Eme said, “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.”
And while there is no single national rule governing surrogacy, the practice has become widely practiced among Nigerians and surrogacy contract is enforceable in Nigeria. A surrogate agreement is a complex legal instrument that requires the skills of an experienced fertility lawyer to ensure compliance with local regulations and tailoring to the parties’ individual needs.
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