Surrogacy : Why there should be laws Regulating Surrogacy Contracts in Nigeria

Surrogacy : Why there should be laws Regulating Surrogacy Contracts in Nigeria.

By Barr. Nneoma Grace Ogbah

Surrogacy is an arrangement, often supported by an agreement, whereby a woman ( the surrogate mother) agrees to bear a child or children for another person(s), who are unable to have children themselves and who will become the child’s parent(s) after the birth. Sometimes, these surrogate mothers are paid to carry out this act after a legal agreement has been duly executed.

While a number of countries have regulated this practice, Nigeria is yet to put laws in place to this effect. The call for appropriate laws to be put in place in surrogacy contracts is to protect all the parties involved in case of contingencies.

The term “surrogate” originated from a Latin word “surrogatus”, which means a substitute or person appointed to act in the place of another. Most countries recognize surrogacy contracts and have made provisions for such contracts in their state laws. For instance, some states in the United States have developed certain statutes which tend to regulate surrogacy. In these states, before a surrogacy agreement can be executed, it must be shown that:

1. The intended parents are legally married and are above the age of 18years and that the surrogate mother is also up to 18years of age or above.
2. The intended mother cannot physically gestate a pregnancy to term, and that such gestation will cause a risk to her health and to the health of her foetus.

These statutes further allows the surrogate to rescind the agreement to relinquish parental rights within 7days of the child’s birth ( in some places, within 72hours after he birth of the child ).

In the United Kingdom, surrogacy is not recognized. The Surrogate Amendment Act of 1985 banned surrogate arrangements. Section 33 of the Human Fertilisation and Embryology Act is of the effect that a surrogate remains the legal mother of any child birthed in such circumstance. The surrogate mother maintains legal ownership of the child even in cases of gestational surrogacy unless a parental order or adoption is made. According to the Act, “ A woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and egg and no other woman is to be treated as the mother of the child”.

There are basically 2types of surrogacy namely:

1. Traditional surrogacy
2. Gestational surrogacy
3. Traditional Surrogacy:

Here, there is an artificial insemination of the sperm of the intended father into the surrogate. By this act, the surrogate mother is genetically related to the child.

1. Gestational Surrogacy:

Under this type of surrogacy, what happens is that the egg of the intending mother is fertilized with the sperm of the intending father and then implanted into the surrogate mother. By this, the baby is not genetically related to the surrogate mother.

Surrogacy contracts just like every other kind of agreement consists of an agreement between 3 or more individuals, ( usually the surrogate, and the the intending couple). There is evidence of an offer, acceptance and consideration. Since there are legal back ups for our everyday contract, why should we not have laws regulating surrogacy contracts?

In Nigeria, there are no laws in place to regulate surrogacy. Most artificial reproductive clinics in Nigeria conduct artificial reproduction in Nigeria, while relying on the Human Fertilisation and Embryology Authority Guidelines of the United Kingdom.

It is also pertinent to point out that the Nigerian Law Reform Commission provides that any child born to a woman as a result of artificial insemination or implantation of an embryo in the body of a woman while she is in marriage must be regarded as a child of the husband, and that where a child is born under the surrogacy agreement, the commissioning parents should formally adopt the child, even if the child is the biological of the commissioning parents. This is aimed at preventing the surrogate mother from returning to claim the child.

Again, is it not worrisome that Section 10(1)(a)(b)(c) of the National Health Act of 2014 prohibits assisted reproductive technology practices and sub section (2) of the above Act renders any of such act an offence punishable with 5 years imprisonment with no option of fine yet our Nigerian doctors, including the ones working at the National hospital conduct artificial reproduction in Nigerian hospitals and clinics and do not face the law, neither are they penalized?

In conclusion, it is my humble opinion that surrogacy being a fast growing area in medical sciences across the globe requires laws to regulate its practice. These laws should be able to provide for the legality or otherwise of surrogacy, right of recission or waiver by the surrogate mother before the child is birthed, age limit for a surrogate mother, to avoid child abuse, as well as the age limit and requirements for a person(s) to qualify as a commissioning/ intending parent, and also provide a sort of protection for parties going into a surrogacy agreement.

There is a very important need for the amendment of the National Health Act of 2014 which tends to prohibit assisted reproductive technology practices in Nigeria and even provided for penalties to defaulting persons. There is also a need for legal backing on surrogacy so as to provide answers to paternity and maternity issues. Therefore, the Nigerian government should look into this.

Surrogacy : Why there should be laws Regulating Surrogacy Contracts in Nigeria

Barr. Nneoma Grace Ogbah

Legal officer, DITOIL Energy ltd.

Credit:SabiLaw

Phone no:    08119690931, 08106472510

Email:[email protected]