Last updated on January 4th, 2025 at 09:29 pm
Surrogacy law in Nigeria is poised for significant transformation as the nation moves toward formalizing regulations in this complex area of reproductive health.
Currently, the absence of clear legal guidelines has led to uncertainties and challenges for intended parents, surrogates, and legal professionals.
However, recent legislative efforts signal a commitment to establishing a comprehensive legal framework that addresses ethical, medical, and legal considerations, aiming to protect the rights and interests of all parties involved in surrogacy arrangements.
With that said, lets delve in.
Definition of Surrogacy
Surrogacy as a word means the act of performing some functions in the place of someone else. It means the process of carrying and delivering a child for another person.
Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman (the surrogate mother) agrees to bear a child for another person or persons, who will become the child’s parent(s) after birth.
Surrogacy refers to motherhood by a third-party female who elects or is commissioned to carry a pregnancy on behalf of another couple.
She delivers a baby and passes it to the commissioning parent at birth.
Surrogacy may be resorted to when pregnancy is medically impossible, or the pregnancy risks are dangerous for the intending mother.
Types of surrogacy
Two types of surrogacy arrangements exist, to wit: traditional surrogacy and gestational surrogacy.
In traditional surrogacy, the surrogate mother contributes genetically to the conception of the baby by the fertilization of her eggs via the in-vitro fertilization (IVF) process (i.e artificial insemination of the egg of the surrogate with the semen of the commissioning father).
In gestational or host surrogacy, the surrogate mother does not contribute genetically to the conception of the baby.
She is strictly the pregnancy’s carrier. A prior fertilized egg (embryo) is implanted into the womb of the surrogate who carries the pregnancy to maturity.
Surrogacy and Religion
The Roman Catholic Church opposes surrogacy and sees it as compromising the sanctity of marriage.
Most Muslims oppose surrogacy and equate gestational surrogacy with adultery which the Koran prohibits since the surrogate carries the sperm of someone, not her husband.
A survey that was done in the United States suggests that evangelicals do not see surrogacy as a moral issue and therefore do not take a stance as to whether it is wrong or not.
The Legality of Surrogacy in Nigeria
Presently, there is no official legal framework regulating surrogacy in Nigeria. People rely on the simple laws of contract to guide the process.
Thus Surrogacy currently is neither legal nor illegal in Nigeria.
However, a Nigerian Surrogacy Bill 2024 has been presented at the House of Representatives which has scaled 2nd reading.
It is aimed at regulating surrogacy arrangements in Nigeria and protecting the rights of all involved.
It proposes creating the Nigeria Surrogacy Regulatory Commission, based in Abuja, to oversee surrogacy practices.
The Commission will register surrogacy agreements, ensure compliance with the law, resolve disputes, and provide guidance.
Experts from fields like health, law, Religion and women’s rights will be part of the Commission.
The Bill sets clear rules for surrogacy. Agencies must register and keep records of surrogates and intended parents.
Commercial surrogacy is banned, meaning no one can profit from the process, and only married couples or certified single individuals unable to have children can use surrogacy.
Surrogates must be at least 21 years old, and agreements must be voluntary, written, and detailed. Medical and psychological checks are required for everyone involved.
Funding for the Commission will come from government money, registration fees, and grants.
Violations, such as unregistered operations or breaking age rules, can result in fines or jail time.
Existing arrangements will have one year to comply with the new rules.
Gaps in the Surrogacy Bill
However, the Bill does not clearly state who the legal parents of a child born through surrogacy are.
It’s recommended that intending parents be recognized as legal parents from the start, as long as they meet their responsibilities.
Surrogacy agreements should also be legally binding, with both parties having independent legal representation.
The rules for who can be a surrogate also need more detail. While the Bill sets a minimum age of 21, it should add an upper age limit, like 42, and require that surrogates have a history of healthy pregnancies.
To protect their health, surrogates should not have more than four prior deliveries, with no more than two by C-section.
The Bill also does not address the rights of children born via surrogacy.
Their citizenship and protections under the Child Rights Act should be clarified.
Intending parents should not be allowed to choose a child’s sex and must care for the child regardless of gender or disability.
The Commission’s powers should be strengthened to revoke licenses, enforce rules, and prosecute offenders.
Dispute resolution should be clarified, allowing appeals to state High Courts.
The ban on commercial surrogacy also needs clearer wording to ensure that reasonable payments to surrogates are allowed.
Ads for surrogacy services should be regulated, and penalties for operating without a license should be much higher to discourage violations.
In summary, the Surrogacy Bill 2024 is a step in the right direction for regulating surrogacy in Nigeria.
However, it needs more work to address gaps and better protect surrogates, intended parents, and children.
Legislators and stakeholders must work together to ensure the law is clear, fair, and effective.
It has been a cause for concern to all that a practice that was even noticeable in the Old Testament (in the case of Abraham, Sarah and her maid Hagar) had no clearly enacted laws governing its operations in 21st century Nigeria.
For more on Surrogacy get : Fresh Perspectives on Nigerian Criminal Law
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