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Surrogacy In Nigeria: Can Surrogacy Contracts And Agreements Be Enforced?
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:
Author: Adeola Oyinlade & Co.
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- The willingness to donate
- The desire to help infertile couples
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- 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.
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- 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
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- 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
Author: Adeola Oyinlade & Co.