Surrogacy remains a complex and often controversial topic, widely discussed across various spheres, including science, law, society, and public policy. It offers a path to parenthood for those unable to conceive or carry a pregnancy, including couples struggling with infertility, same-sex couples, and single parents. However, the practice can provoke strong emotions, especially when concerns about exploitation and ethical implications arise. As a result, countries and regions have taken different approaches to regulate surrogacy, leading to a patchwork of legal frameworks.
In many countries, surrogacy is illegal due to concerns over commodification of the human body, exploitation of women (particularly those in vulnerable situations), and the potential for complex legal disputes regarding parental rights. However, the prohibition of surrogacy does not always prevent people from pursuing it, often driving the practice underground or across borders to jurisdictions with more permissive or unclear regulations.
The global discrepancy in surrogacy laws often results in “surrogacy tourism,” where individuals or couples travel to countries with more favorable surrogacy regulations. This practice raises further ethical and legal questions, especially concerning the rights of the surrogate and the child.
Ultimately, the debate over surrogacy governance revolves around finding a balance between facilitating a path to parenthood and protecting the rights and welfare of all parties involved. Crafting fair, ethical, and enforceable policies that address the nuances of surrogacy is a challenge faced by many nations.
Although surrogacy is not explicitly prohibited in Nigeria, the absence of a clear legal framework regulating the practice creates significant legal ambiguities. With no formal legislation addressing the rights, responsibilities, and protections of the involved parties, surrogacy arrangements in Nigeria exist in a gray area, exposing both intended parents and surrogates to various legal risks. This article explores the challenges and enforceability of surrogacy contracts and agreements within the Nigerian legal context.
THE NEED FOR A LEGAL FRAMEWORK GOVERNING SURROGACY
In the absence of specific surrogacy laws, the enforceability of surrogacy agreements in Nigeria is uncertain. Most surrogacy contracts typically outline the terms, including the surrogate’s consent to carry the child, financial arrangements, and the transfer of parental rights after birth. However, without a legal framework, these agreements may not hold up in court if disputes arise. For instance, a surrogate mother might decide to keep the child, or the intended parents might refuse to assume parental responsibilities. In such cases, the lack of binding legislation makes it difficult for either party to seek legal recourse or enforcement of the contract terms.
Nigerian law does not currently recognize surrogacy agreements as legally binding. The closest applicable legal provisions relate to contracts, but these do not adequately address the complexities of surrogacy, such as parental rights, child custody, and the ethical concerns involved. Additionally, issues like the determination of legal parentage in surrogacy cases remain unresolved in Nigerian family law, which traditionally recognizes the woman who gives birth as the child’s legal mother. This creates a potential conflict in surrogacy situations where the intended parents wish to be recognized as the child’s legal parents from birth.
The lack of regulation also raises concerns about the protection and rights of surrogates. In the absence of clear guidelines, surrogate mothers might be vulnerable to exploitation, with little legal protection regarding their health, well-being, or financial compensation. Similarly, intended parents face uncertainties, as there are no formal mechanisms to ensure that their parental rights will be legally recognized once the child is born.
To address these challenges, there is an urgent need for Nigeria to develop a comprehensive legal framework governing surrogacy. Such legislation should clearly define the rights and obligations of all parties, establish procedures for legal parentage and custody, and outline regulations for both commercial and altruistic surrogacy arrangements. By creating a robust legal structure, Nigeria can mitigate the legal risks currently associated with surrogacy and provide clarity and protection for surrogates, intended parents, and the children born through this process.
WHAT IS SURROGACY
Surrogacy is a process in which a woman, referred to as the surrogate or gestational carrier, agrees to carry and give birth to a child for another person or couple, known as the intended parent(s). The surrogate undergoes pregnancy with the clear intention of transferring the child to the intended parent(s) after delivery. This arrangement can be classified into two main types: “altruistic’” and “commercial”. In altruistic surrogacy, the surrogate receives no financial compensation beyond covering reasonable expenses, such as medical costs. In contrast, commercial surrogacy involves compensating the surrogate for her role, often raising ethical and legal questions.
Surrogacy is often considered by individuals or couples who are unable to conceive or carry a pregnancy due to infertility, health complications, or other personal circumstances. It provides a viable path to parenthood for those who may otherwise be unable to have a biological child, including same-sex couples and single individuals. However, the practice is intricate, involving advanced medical procedures, potential emotional complexities, and legal ramifications that demand careful navigation.
The process of surrogacy typically involves several sophisticated medical interventions. In most cases, in vitro fertilization (IVF) is employed to create an embryo using the intended parents’ or donors’ genetic material, which is then implanted in the surrogate’s uterus. Throughout the pregnancy, the surrogate undergoes regular medical check-ups and care, similar to any other pregnancy, to ensure the health and well-being of both the surrogate and the developing baby.
The emotional aspect of surrogacy can be challenging for both the surrogate and the intended parent(s). Surrogates may experience complex feelings as they nurture a child that they intend to pass on, while intended parents often face emotional stress related to the uncertainty of the pregnancy outcome and the intricate legal processes involved in securing their parental rights.
One of the most significant hurdles in surrogacy is the legal framework, which varies considerably across different countries and regions. In some countries, surrogacy is strictly regulated, while in others, it is entirely banned or lacks clear guidelines, Nigeria falls within the later. These discrepancies create legal, ethical, and medical challenges that can be difficult to navigate. For example, some jurisdictions only permit altruistic surrogacy and have strict rules governing the payment of surrogates. Others may allow commercial surrogacy but with specific regulations to protect the rights of both the surrogate and the intended parents.
In countries where surrogacy laws are vague or non-existent, intended parents and surrogates often face a legal gray area that can lead to disputes and difficulties in establishing parental rights. The legal consequences of surrogacy can involve complex issues such as determining legal parentage, citizenship status of the child, and custody rights. Furthermore, ethical concerns arise, particularly in commercial surrogacy, around the potential exploitation of surrogates, especially in situations where there is a power imbalance or economic disparity.
Given the multifaceted nature of surrogacy, involving medical, emotional, and legal aspects, it requires a comprehensive understanding and adherence to the relevant laws and regulations. This ensures that the rights and welfare of the surrogate, the intended parent(s), and the child are adequately protected throughout the process.
TYPES OF SURROGACIES
Surrogacy is generally divided into two main types: **traditional surrogacy** and “gestational surrogacy”, each with distinct procedures and implications.
- Traditional Surrogacy: Traditional surrogacy involves the use of the surrogate’s own egg for conception. In this process, conception typically occurs through intrauterine insemination (IUI), where sperm from the intended father or a donor is introduced into the surrogate’s uterus. As a result, the surrogate is both the genetic and gestational mother of the child.
Traditional surrogacy has become less popular due to its complex legal and emotional challenges. Since the surrogate is genetically related to the child, potential issues around parental rights and emotional attachment can arise. This genetic link can make it more difficult for intended parents to secure legal custody, and in some jurisdictions, traditional surrogacy is prohibited or heavily regulated to mitigate these complications.
- Gestational Surrogacy: Gestational surrogacy, on the other hand, involves a surrogate carrying and giving birth to a child that is not genetically related to her. In this arrangement, an embryo is created through in vitro fertilization (IVF) using the eggs and sperm of the intended parents, donors, or a combination of both. The embryo is then implanted into the surrogate’s uterus, where she carries the pregnancy to term.
Since the surrogate in gestational surrogacy has no genetic connection to the child, this type of surrogacy is generally favored both legally and emotionally. Intended parents often find it easier to establish their parental rights since they are the biological parents. Gestational surrogacy also tends to be more common because it provides an option for individuals or couples facing infertility issues, same-sex couples, and single parents who want a biological link to their child.
Despite the lack of genetic contribution, gestational surrogacy still involves the surrogate’s consent to carry the pregnancy and deliver the child with the intention of transferring the child to the intended parents upon birth. This process is medically complex, requiring careful planning, legal agreements, and emotional support for all involved parties.
Overall, gestational surrogacy presents fewer legal and emotional complications compared to traditional surrogacy, which is why it is more widely practiced. However, it still carries its own set of challenges, including ethical considerations, medical procedures, and the need for comprehensive legal frameworks to protect the rights of the surrogate, the intended parents, and the child.
Who are the intended parents?
Intended Parents are individuals or couples who, due to various reasons, are unable to conceive or carry a child naturally and choose surrogacy as a means to build their family. These reasons may include infertility, medical conditions, same-sex partnerships, or other personal circumstances that prevent them from experiencing a traditional pregnancy.
Surrogacy provides intended parents with the opportunity to have a biological or genetic connection to their child, particularly in gestational surrogacy, where the embryo is created using their own gametes or donated ones. While surrogacy can be a path filled with hope, it also involves navigating emotional, financial, and legal complexities. Therefore, intended parents often work closely with fertility clinics, legal professionals, and support networks to ensure a smooth and ethical surrogacy journey.
Who is a surrogate mother?
A “surrogate mother” is a woman who agrees to carry and give birth to a child on behalf of another individual or couple who are unable to conceive. The surrogate, acting as a “substitute mother,” undertakes the pregnancy and childbirth, with the understanding that the child will be handed over to the intended parent(s) upon birth. The intended parent(s) are considered the child’s “real” mother or father from a social and legal perspective. The surrogate may be motivated by financial compensation, personal reasons, or altruistic desires, depending on the type of surrogacy arrangement.
What are the legal frameworks governing surrogacy in Nigeria?
Nigeria currently lacks a comprehensive legal framework regulating surrogacy, which leads to significant uncertainty and challenges for those engaged in surrogacy arrangements. The absence of specific surrogacy laws creates concerns about the validity and enforceability of surrogacy contracts in Nigerian courts.
Some argue that, since surrogacy is not explicitly prohibited, contracts related to surrogacy might be enforceable under general contract law principles, which include offer, acceptance, and consideration. However, others raise concerns that unregulated surrogacy may conflict with existing laws, such as Section 30 of the Child Rights Act, which prohibits the buying, selling, or dealing in children. Additionally, Section 13 of the Trafficking in Persons (Prohibition) Enforcement and Administration Act (TIPPEA Act) criminalizes all forms of human trafficking, and Section 50 of the National Health Act prohibits manipulation of genetic material.
Despite the lack of specific surrogacy legislation, there are professional guidelines that govern related practices. The Code of Medical Ethics in Nigeria, specifically Order 23, addresses assisted reproductive technologies, including in vitro fertilization, sperm and egg donation, embryo donation, and various forms of surrogacy. These guidelines aim to ensure ethical standards and professional conduct in the application of high-technology reproductive methods.
The ethical considerations in assisted reproductive practices, such as surrogacy, include:
- Counseling and Consent: Ensuring that donors and surrogates fully understand their roles and provide informed consent.
- Gamete and Embryo Processing: Conducting thorough medical screening and maintaining transparency about genetic information and health status.
- Recipient Screening: Evaluating the recipient’s uterine fitness and psychological readiness, and providing comprehensive counseling about potential outcomes and uncertainties.
- Offspring Considerations: Balancing the need for openness with the potential for secrecy in the child’s background.
- Monetary Compensation: Addressing ethical concerns related to payments for gamete and embryo donations, emphasizing that these should be considered voluntary services rather than commercial transactions.
- Embryo Donation for Research: Regulating the ethical use of embryos, particularly those not used for pregnancy, and ensuring appropriate legislative oversight.
In 2016, Nigeria attempted to address surrogacy regulation with the presentation of the Assisted Reproductive Technology (Regulation) Bill, but the bill has yet to be passed. Lagos State has made strides by issuing guidelines on Assisted Reproductive Technology in 2019, yet this initiative has not been mirrored by other states or the Federal Capital Territory. The current legislative void fosters informal agreements that can lead to conflicts and potential exploitation, underscoring the urgent need for clear regulatory guidance and legal protection.
To address these issues, Nigeria needs to enact comprehensive surrogacy legislation. Such laws would provide clarity, protect against exploitation and disputes, and prioritize the well-being and rights of all parties involved, including the children born from these arrangements. In the interim, it is crucial for individuals considering surrogacy to develop thorough, legally binding contracts to navigate the complexities and safeguard their interests.
What is a surrogate agreement?
A “surrogate agreement”, or surrogacy contract, is a crucial legal document that outlines the rights, responsibilities, and expectations of all parties involved in a surrogacy arrangement. This agreement ensures clarity and protection for both the intended parents and the surrogate. Key elements typically included in a surrogacy contract are:
- Accuracy of Information: Ensures that all parties provide truthful and complete information regarding their medical history, personal circumstances, and other relevant details.
- Medical Evaluations and Procedures: Details the required medical evaluations, screenings, and procedures for both the surrogate and the intended parents, including any specific instructions for the care and management of the pregnancy.
- Release of Information: Specifies the conditions under which the surrogate or gestational carrier may release medical and personal information to the intended parents or other relevant parties.
- Sexual Activity: Addresses expectations or restrictions regarding the surrogate’s sexual activity to ensure it aligns with the medical requirements of the pregnancy.
- Medical Instructions and Care: Outlines the surrogate’s medical care, including diet, prenatal vitamins, and any other health-related instructions to ensure a healthy pregnancy.
- Substance Use and Harmful Exposure: Sets restrictions on the use of substances, including drugs, alcohol, and exposure to harmful environments, to safeguard the health of the surrogate and the developing child.
- Activity Restrictions: Details limitations on strenuous activities, travel, and residence to minimize risks and complications during the pregnancy.
- Payment and Reimbursement: Specifies the financial arrangements, including compensation for the surrogate, reimbursement of medical expenses, and any additional payments agreed upon.
- Medical Expenses: Clarifies which medical expenses are covered by the intended parents and the process for handling these costs.
- Possession of the Child and Breast Milk: Addresses the custody of the child immediately after delivery and any arrangements for breast milk if applicable.
- Termination of Pregnancy: Outlines the conditions and procedures for the potential termination of the pregnancy, including decision-making processes and consent requirements.
- Parent-Child Relationship: Defines the legal and social parentage of the child, ensuring that the intended parents are recognized as the child’s legal parents.
- Confidentiality: Ensures that all parties agree to maintain confidentiality regarding personal and medical information and the details of the surrogacy arrangement.
- Change of Circumstances: Provides guidelines for handling significant changes in circumstances that may affect the surrogacy arrangement, such as health issues or changes in personal situations.
- Termination of Agreement: Describes the conditions under which the surrogacy agreement can be terminated by either party and the procedures for doing so.
- Breach of Agreement and Remedies: Details the consequences and remedies for any breaches of the agreement, ensuring that all parties understand the legal repercussions of failing to adhere to the contract terms.
- Governing Law: Specifies the legal jurisdiction that governs the surrogacy agreement, which is crucial for resolving any disputes that may arise.
Surrogacy contracts must be meticulously crafted to protect the interests of all parties involved, particularly the intended parents and the surrogate. In traditional surrogacy arrangements, it is vital to include provisions that safeguard the intended parents against potential disputes over parental rights. The contract should clearly state that any unauthorized retention of the child by the surrogate is considered abduction, emphasizing the seriousness of such actions and ensuring robust legal protection for the intended parents.
ENFORCEMENT OF SURROGACY CONTRACT IN NIGERIA
In Nigeria, the legal system upholds the enforcement of contracts that fulfill essential requirements, meaning that surrogacy contracts, despite the absence of specific surrogacy legislation, are treated with the same legal respect and consideration as other binding agreements.
Surrogacy contracts rely on mutual consent and the exchange of value, which are fundamental for their validity and enforceability. Even in the absence of dedicated surrogacy laws, these agreements are governed by general contract law principles. Therefore, as long as a surrogacy contract includes a clear offer, acceptance, and consideration, it is considered valid and enforceable.
However, surrogacy contracts entered into through coercion, threats, or deception, or those with terms that are impossible to fulfill, will not be enforced by the court. Additionally, commercial surrogacy contracts, which involve compensating the surrogate, face varying interpretations across jurisdictions. Some view these contracts as akin to the sale of children, which is both legally and ethically contentious.
Despite potential moral and public policy concerns that might influence the enforcement of surrogacy contracts, it is crucial to recognize that such agreements are legally enforceable if they meet the requirements of a valid contract. Should complications arise, the parties involved have the right to seek legal redress, and their cases can be adjudicated in court.
Following the birth of the child through surrogacy, it is essential for the intended parents to obtain a custody order in Nigeria. This legal procedure is crucial for ensuring that the intended parents’ parental rights are fully recognized and protected. Securing a custody order establishes the intended parents’ legal status as the child’s parents, providing legal protection and peace of mind for the family’s future.
CONCLUSION
Although there is no universally adopted rule governing surrogacy in Nigeria, the practice is not outlawed. Surrogacy contracts are enforceable under Nigerian law, as they are based on the fundamental principles of contract law, which require a clear offer, acceptance, and consideration. Once these essential elements are present and all requisite criteria are met, a surrogacy contract is considered valid and enforceable.
In the event of a breach of the surrogacy agreement, the parties involved have the right to seek legal redress in a court of law. The court can address disputes and enforce the terms of the contract as long as it aligns with general contract law principles.
Given the complexity of surrogacy agreements, it is essential to engage an experienced fertility lawyer to draft and review the contract. A skilled lawyer can ensure that the agreement complies with local regulations and is tailored to the specific needs of the parties involved, providing a robust legal framework for the surrogacy arrangement.