Introduction

Surrogacy is often discussed in the media from a scientific, social, legal, and policy perspective.Although surrogacy is widely accepted as a kind of assisted reproduction for those who would otherwise be unable to have children, it can elicit strong feelings, particularly when there is a risk of exploitation. As a result, there is dispute over how it should be governed. Surrogacy is illegal in many nations, but people nonetheless do it. In some jurisdictions, surrogacy is unregulated while in certain countries, it is guided by a ‘commercial’ or ‘altruistic’ framework.

Although Nigeria does not prohibit surrogacy, it has not established a legal framework for regulating the surrogacy procedure. The lack of formal legislation governing the practice places both the couple and the intended surrogate mother in a legal limbo, exposing the parties to legal dangers. This article examines the enforceability of surrogacy contracts and agreements in Nigeria.

What is surrogacy?

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 parent(s). The surrogate carries the pregnancy and gives birth to the child, with the intention of passing it on to the intended parent(s) 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.

Surrogacy is frequently attempted by individuals or couples who are unable to conceive or carry a child due to infertility, pregnancy-related health problems, or other causes. It is a practice involving sophisticated medical procedures, emotional difficulties, and legal consequences that necessitate thorough understanding and adherence to applicable laws and rules. Surrogacy laws and regulations differ widely among jurisdictions, creating complex legal, ethical, and medical issues.

Types of surrogacy

Surrogacy is usually divided into two types, traditional surrogacy and gestational surrogacy.

Traditional surrogacy: This involves using the surrogate’s egg for conception, mainly by intrauterine insemination (IUI). It is less popular because of its legal and emotional difficulties.

Gestational surrogacy: It 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. A woman’s consent to have a child which is then transferred to others upon birth. Gestational surrogacy involves creating an embryo using an infertile woman’s egg and sperm and implanting it in a surrogate mother.

Who are the intended parents?

Intended Parents are individuals or couples who are unable to conceive naturally and opt for surrogacy to start a family.

Who is a surrogate mother?

A “surrogate mother” is a woman who, for financial or other reasons, agrees to bear a child for another woman who is unable to conceive. She is a “substitute mother” who conceives, gestates, and delivers a child on behalf of another woman, who is then considered the child’s “real” mother (social and legal).

What are the legal frameworks governing surrogacy in Nigeria?

There is no broad legal framework regulating surrogacy in Nigeria, causing uncertainty and hurdles in surrogacy arrangements. The lack of surrogacy-specific laws in Nigeria raises concerns about the validity and enforcement of such contracts in court.

Some argue that since surrogacy is not explicitly prohibited, surrogacy contracts can be enforceable based on general contract law principles of offer, acceptance and consideration. However, others contend that unregulated surrogacy violates section 30 of the Child Rights Act which prohibits buying, selling or dealing in children. 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.

Although 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 make 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. These techniques embrace wide professional practices that include in-vitro fertilization, sperm donor and egg donor techniques, embryo donation, gestational surrogacy, full surrogacy and other emerging procedures.

While the necessary statutes to govern these desirable practices in the society are yet to be enshrined, ethical considerations show the essence for care and attention to the several needs of donor, recipient, and offspring at every step in these practices. While the Council is devoting particular attention to necessary and continuous development of the ethical guidelines in assisted conception and all its professional practice implications, practitioners are expected to resolve certain matters of ethical significance that may arise. While both sperm and egg donations in in-vitro fertilization are accepted as ethically sound practices, in embryo donations, gestational surrogacy or full surrogacy, the practitioner will need to resolve ethical matters in respect of the following:

(A) Counseling and Consent of the donor in respect of:

    • The willingness to donate
    • The desire to help infertile couples

(B) The gamete or embryo processing

    • There must be the screening of family history for genetic diseases, HIV and other infectious diseases including rescreening for HIV.
    • In situations where embryos are mixed, genetic ancestry may only be determinable by DNA testing.

(C) The recipient is:

    • Screened for uterine fitness and gestational capability
    • Screened-for psychological stress
    • Counseled that birth may not occur,
    • Informed on the extent of screening done, particularly in case rescreening for HIV is omitted
    • Made to give informed consent on psychological uncertainties
    • Told of limit of information given to donor on the out come

(D) The Offspring

There are options on the need for openness or secrecy with regard to full disclosure. For now, in Nigeria, the principles applied in child adoption are best in the present circumstances.

(E) Monetary compensation for embryo

There are ethical considerations on monetary payments in view of connotations of selling and commercialising in the early form of human life.

It has become necessary that the Laws of the country should make the provisions for resolving this. Meanwhile the Medical and Dental Council of Nigeria advises that gamete or embryo donation should be made as a voluntary service and not commercialised.

(F) Embryo donation for research

There is the ethical risk of trading in embryos that are neither used to – initiate pregnancy nor discarded. Such issues as donor recruitment methods, monetary transactions, and types of researches to be applied to embryos certainly need statutory regulation. The Medical and Dental Council of Nigeria calls for appropriate legislation on the matter.

The country has attempted to regulate surrogacy, most notably with the presentation of the Assistive Reproductive Technology (Regulation) Bill in 2016. However, this bill is yet to be passed, leaving a substantial vacuum in the legal protection and regulation of surrogacy contracts. Lagos State stands out as an exception, having issued guidelines on Assisted Reproductive Technology in 2019, a trailblazing action that is yet to be emulated in Nigeria’s other states and the Federal Capital Territory. This legislative void encourages informal agreements, which can lead to conflicts and exploitation, stressing the vital need for regulatory guidance and legal protection for all parties involved.

It is evident that the absence of surrogacy regulations in Nigeria puts all parties in a vulnerable position. To create a transparent, ethical, and legally sound approach to surrogacy, Nigeria must enact comprehensive legislation. Such regulations would handle the intricacies of surrogacy, protect against exploitation and disputes, and ultimately prioritise the well-being and rights of the children born as a result of these arrangements, as well as the rights of other parties involved.

Until such rules are in place, the emphasis will be on creating thorough, legally binding surrogacy contracts. These contracts constitute an essential tool for people considering surrogacy as a path to parenting.

What is a surrogate agreement?

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. Some key elements that may be contained in the Surrogate Agreement include:

    • Accuracy of information by parties to the Agreement
    • Evaluations, examinations, screening, medical procedures and instructions
    • Release of information by gestational carrier or surrogate mother
    • Sexual activity of the gestational carrier or surrogate mother
    • Medical instructions, diet and prenatal vitamins of the gestational carrier or surrogate mother
    • Restrictions regarding the use of substances; harmful exposure by gestational carrier or surrogate mother
    • Strenuous activity, travel, residence by gestational carrier or surrogate mother
    • Payment and reimbursement
    • Gestational carrier’s medical expenses
    • Possession of child after delivery and breast milk
    • Termination of pregnancy
    • Parent-child relationship
    • Confidentiality
    • Change of circumstances
    • Termination of agreement
    • Breach of agreement and remedies
    • Governing Law

Surrogacy contracts must carefully protect the interests of all parties involved, particularly the intended mother and surrogate. In traditional surrogacy arrangements, it is critical to include clauses that protect the intended mother and parents against disputes over parental rights. Contracts for all surrogacy kinds should clearly stipulate that any unauthorised keeping of the child by the surrogate is considered abduction, stressing the gravity of such actions and ensuring legal protection for the intended parents.

Is a surrogacy contract enforceable under Nigerian law?

The Nigerian legal system permits the enforcement of contracts that meet certain essential requirements. As a result, despite the lack of particular legislation governing surrogacy, 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. Even though there are no specific surrogacy laws in Nigeria, 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.

Despite the fact moral and public policy debates may indicate a reluctance to enforce surrogacy contracts, it is important to note that 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.

After the birth of the child through surrogacy, the intended parents must get a custody order in Nigeria. This legal procedure is vital for ensuring that their parental rights are completely and legally recognised and protected. Obtaining a custody order confirms the intending parents’ legal status as the child’s parents, offering peace of mind and legal protection for the family’s future.

Conclusion

Despite the fact that research indicates that there is no single rule governing surrogacy that has become widely practiced among Nigerians, it does not mean that the concept is outlawed in Nigeria.

Surrogacy contract is enforceable in Nigeria. The notion is based on agreement, which means that it is a contract that includes the fundamental parts of an offer and acceptance. A contract becomes enforceable after all of the requisite criteria have been met. Thus, in the event of a violated surrogacy arrangement, the parties may seek legal redress in a court of law.

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.

Note: The content of this article is anticipated to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstance.

Author: Adeola Oyinlade & Co.

More from Adeola Oyinlade & Co