Surrogacy has increasingly become the go-to Assisted Reproductive Technology method that couples who are unable to naturally conceive opt for to have children. With many Nigerians now embracing the option of surrogacy to become parents, you may wonder if there exists any kind of legislative framework to regulate the surrogacy process in Nigeria. Keep on reading to learn whether surrogacy is legal or not in Nigeria.
Is Surrogacy Legal in Nigeria?
This question is not one that we can answer with a YES or a NO. There is yet to be a legal framework that regulates surrogacy in Nigeria, however, this doesn’t mean surrogacy is expressly prohibited in the country. However, if a couple and an intending surrogate mother have a written contract where all parties are in agreement and something of value is exchanged, potential legal risks might be mitigated.
A Brief Overview of What Surrogacy is All About
Before we proceed to discuss the legality of the surrogacy process in Nigeria or otherwise, we think it’d be best to first understand what surrogacy is all about. First off, surrogacy is one of the popular options of Assisted Reproductive Technology that couples faced with infertility challenges opt for to become parents. In surrogacy arrangements, a woman, who is known as a surrogate, will agree to carry and deliver a child on behalf of someone else or a couple (the intended parents).
There are two classifications of the types of surrogacy generally practised across the globe, including in Nigeria. These are traditional surrogacy and gestational surrogacy. In traditional surrogacy, the surrogate mother would provide her eggs to be fertilized by artificial insemination. Then, she would carry the foetus to term for the intended parent(s). In this arrangement, the surrogate mother becomes both the biological and gestational mother of the child.
The other type of surrogacy, gestational surrogacy, differs from the traditional one in that the egg to be fertilized is provided by the intending parent (the genetic mother) and not the surrogate mother. Thereafter the surrogate mother would carry the foetus to term. Since the surrogate mother’s egg did not contribute to conceiving the baby, the surrogate mother is strictly regarded as a host surrogate (also known as the gestational mother).
Among the two types of surrogacy practised in Nigeria, gestational surrogacy is the more popular option as legal issues like the identity of the rightful mother of the child, which is common in traditional surrogacy, is avoided. Although the surrogacy procedure is somewhat expensive, many Nigerians who would not have become parents due to infertility issues now have children of their own.
Unavailability of Enacted Legislations to Regulate Surrogacy in Nigeria
Unlike many countries that have legislation put in place to regulate the practice of surrogacy within their territories, Nigeria lacks a recognised legal framework regulating surrogacy procedures. Although surrogacy is not legally acknowledged in Nigeria, it does not mean the procedure is expressly prohibited in the country. There is no written law In the country at this time that criminalizes surrogacy as an offence nor any punishment subscribed for it.
In 2016, the presentation of the Assistive Reproductive Technology (Regulation) Bill was the closest to formulating a legal framework for surrogacy agreements in Nigeria. Sadly, the Bill hasn’t become law yet. But in 2019, the Lagos State Government passed guidelines for Assisted Reproductive Technology. The other 35 States and the nation’s capital have done nothing towards regulating surrogacy within their territories by enacting relevant legislation.
The lack of a laid-down legal framework to regulate surrogacy in Nigeria creates a legal vacuum which may expose the parties involved in a surrogacy agreement to legal risks. There abound several verifiable accounts of instances whereby the intending parent(s) and the surrogate mother fight over the parentage of the child. To explain how parties involved in a surrogacy agreement in Nigeria are exposed to legal risks due to a lack of regulatory law and framework, we’d use a real-life experience that was reported in a national daily sometime last year.
According to the newspaper, a US-based couple accused a Nigerian surrogate mother of absconding with their twin boys which were the product of the surrogacy agreement. On the other hand, the surrogate mother of the twin boys, through her lawyer, alleged that the US-based couple didn’t fulfil their end of the agreement by footing the medical bills during the pregnancy, hence the decision not to hand the twin boys over to the couple after she had delivered them.
Instances as what is described above could be prevented in Nigeria if there were appropriate legislation controlling surrogacy in Nigeria.
What to do When Entering into a Surrogacy Agreement in Nigeria
Since surrogacy is not expressly prohibited in Nigeria, many Nigerians are increasingly entering into surrogacy agreements daily. Sadly, efforts to enact relevant laws governing surrogacy in Nigeria are non-existent, creating room for parties to be exposed to potential legal risks. In the interim, certain safeguards are needed to prevent parties involved in a surrogacy agreement from encountering legal tussles.
The first safeguard to put in place is that both parties agree to a written contract that contains all the rights and obligations of each party with respect to surrogacy. That is to say, the contract must contain an offer as well as an acceptance. Then there must be something of value that should be exchanged between the intending parent(s) and surrogate mother. Although other elements of the surrogacy agreement are important, these tips we provided help make the contract enforceable. With these safeguards in place, surrogacy agreements can be enforced in Nigerian courts when a party fails to abide by the terms of the contract.
After the birth of the child, it’d be advisable that the intending parents consider getting a custody order to assert their parental rights over the child. With this done, intending parents would be able to dodge the legal risks associated with surrogacy in Nigeria.
There exists a pressing need for regulation of Assisted Reproductive Technology in Nigeria.