INTRODUCTION
Technology now offers respite to couples who need assistance in forming families. Among the options available to people who are desirous of having children but are unable to for one reason or the other are assisted reproductive technologies such as in vitro fertilization and surrogacy.
While some other countries have established legal frameworks to regulate the practice of surrogacy, Nigeria lacks a specific legislation in that regard. Yet, there is a growing prevalence of surrogacy in Nigeria as some fertility clinics and individuals already offer surrogacy services. This article examines the legal regime of the practice of surrogacy in Nigeria, and also addresses the legality and enforceability of surrogacy agreements.
WHAT IS SURROGACY?
Surrogacy is an arrangement where a woman (the surrogate) agrees to carry a baby to term and birth the child for another person or couple (the commissioning or intended parents). At the birth of the child, the surrogate gives up legal rights of custody and parentage to the intended parents. Usually, there is a surrogacy agreement stating the terms of the arrangement.
TYPES OF SURROGACY
There are two types of surrogacy: traditional surrogacy and gestational surrogacy. In traditional surrogacy, the surrogate is inseminated with the sperm of the male partner of the intended parent. A sperm donor can also be used, but the surrogate provides the egg in traditional surrogacy. On the other hand, in gestational surrogacy, the surrogate carries the pregnancy created by transferring an embryo created with the sperm and egg of the intended parents. Donor sperm or donor eggs can be used as well. In gestational surrogacy, the surrogate has no genetic connection to the child that is born as she contributed no genetic material.
FORMS OF SURROGACY ARRANGEMENTS
Surrogacy arrangements may be either altruistic or commercial. Altruistic surrogacy refers to an arrangement where the surrogate is not paid any form of compensation or given any incentives other than the medical expenses and other reasonable expenses incurred as a reason of her pregnancy. On other hand, commercial surrogacy involves the commercialisation of the surrogacy process whereby the surrogate or her dependents are offered some benefits, reward, incentives, payment or compensation other than that for medical expenses incurred. It often involves the buying or trading of the services of the surrogate mother.
THE LEGALITY OF SURROGACY ARRANGEMENTS IN NIGERIA
Presently in Nigeria, the practice of surrogacy may not be illegal, as surrogacy is not explicitly proscribed by any Nigerian legislation. Currently, no extant Nigerian legislation regulates surrogacy arrangements. This does not mean that the practice of surrogacy is generally unknown to the Nigerian Legal System. It simply means that there is no comprehensive legislation that speaks specifically to the practice of surrogacy.
However, we can draw from various principles in different areas of law to address the legality of surrogacy arrangements in Nigeria. The principles of contract, the provisions of the Child Rights Act of 2003, the National Health Act of 2014 and the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act1, are all relevant to the examination of the legality of surrogacy arrangements in Nigeria
A combined reading of Section 30(1) and (3) of the Child Rights Act indicate that the buying, selling, hiring, possessing or otherwise dealing in a child is a criminal offence. Under the Nigerian legal system, a contract for any of the above will be void for illegality and automatically, unenforceable. Scholars have relied on Section 30(1) and (3) of the Child Rights Act to argue that surrogacy is illegal. It is arguable that commercial surrogacy is perhaps, the form of surrogacy arrangement that could be illegal and inconsistent with this provision. Thus, a purely altruistic surrogacy arrangement would not amount to an offence.
Further, one may also consider that the National Health Act stipulates that a person shall not manipulate any genetic material, including genetic material of human gametes, zygotes or embryos; engage in any activity including nuclear transfer or embryo splitting for the purpose of the cloning of human being; import or export human zygotes or embryos2. This section does not prohibit surrogacy as surrogacy has nothing to do with either the manipulation of genetic material or cloning of a human being.
Section 21 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act provides that any person who requires any other person, or permits any place within or outside Nigeria, to be used for forced labour...commits an offence and is liable on conviction to a fine not exceeding N100, 000.00 or to imprisonment for a term of five years or both such fine and imprisonment. Arguments have been proffered to link this section to surrogacy arrangements. However, it is also debateable that this section speaks more to the scourge of baby factories3 than surrogacy arrangements considering that the former is usually under duress or force, while the latter is not. Thus, a surrogacy arrangement would only become forced labour if the surrogate was forced or compelled into the arrangement.
ENFORCEABILITY OF SURROGACY AGREEMENTS
The law of contract and its principles, regulates contractual agreements in Nigeria. Generally, valid contracts are enforceable while void contracts and contracts tainted with illegality are unenforceable.
Generally, when a contract has all the elements of a valid contract, it should ordinarily be enforceable at law. Thus, if a surrogacy agreement has met the requirements of all the elements of a valid contract, it should be enforceable. However, where a surrogacy agreement is seen to be exploitative, the courts may be inclined to declare the agreement as unenforceable, at law.
CONCLUSION
The lack of a specific legislation regulating surrogacy arrangements, continues to leave a lacuna which encourages unethical practices. It is crystal clear that the absence of law creates opportunities for exploitation and sharp practices. Hence, there is an urgent need for a legal framework regulating surrogacy arrangements in Nigeria. If legislation is not enacted, the controversy as to the enforceability or non-enforceability of surrogacy agreements may never end, and sharp practices may continue to result in unsavoury experiences for willing surrogates, and intending parents.
Footnotes
1. The law was enacted in 2003, was amended in 2005 and again in 2015.
2. Section 50
3. A baby factory is a place where pregnant teenage girls are kept in dehumanizing conditions and give birth in exchange for paltry sums of money.
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