Why the surrogacy bills are illegal and unconstitutional

By Sonnie Ekwowusi

You may be well aware that two surrogacy bills are currently pending before the House of Representatives in Abuja. The first bill, titled A Bill to Protect the Health and Well-being of Women, Particularly in Relation to Surrogacy, is sponsored by Hon. Uchenna Okonkwo of the Labour Party, representing Idemili/Idemili South Federal Constituency, Anambra State. The second bill, titled The Nigerian Surrogacy Regulatory Commission Bill is sponsored by Hon. Olamijuwonlo Alao-Akala of the All Progressives Congress (APC), representing Ogbomoso North and Oriire Federal Constituency. This bill has already passed a second reading in the House of
Representatives.

These two surrogacy bills are related in the sense that they both aim to establish a regulatory framework for the practice of surrogacy in Nigeria.

I have carefully and meticulously studied the two extant bills alongside the 1999 Constitution and other existing laws in Nigeria, and I would humbly submit that both surrogacy bills are illegal and unconstitutional. Surrogacy is, essentially, the renting of the womb. In case you are unaware, surrogacy has become widely practiced in Nigeria. In Nigeria, one can rent the womb of a girl for a meager fee ranging between ₦250,000 and ₦500,000.

For example, late last year, a middle-aged man and a lady walked into our law firm and briefed us to draw up a surrogacy contract whereby the lady would carry and deliver a baby for a certain wealthy woman in Lagos. I wasted no time in showing them the exit door. Our law firm does not draft such illegal contracts no matter the high professional fee offered to us.

Surrogacy can be classified into traditional surrogacy and gestational surrogacy. Traditional surrogacy involves a woman providing her own egg, which is fertilized by artificial insemination, carried, and delivered on behalf of another person or couple. On the other hand, gestational surrogacy is the process where a person who did not provide the egg used in conception carries a fetus through pregnancy and gives birth to a baby for another person or couple. In this case, the gestational carrier is not genetically related to the child.

As I earlier stated, the two surrogacy bills being sponsored by the two federal legislators are illegal and unconstitutional under the following:

The Child Rights Act (which upholds the child’s dignity and right to identity),

The TIPPEA Act (when involving payment or obtaining benefit for babies),

·The Criminal Code (regarding fraud, unlawful custody, and exploitation),

·The 1999 Constitution of the Federal Republic of Nigeria,

·The African Charter on Human and Peoples’ Rights,

Both commercial and altruistic surrogacy are illegal under Nigerian law,

·Consent to engage in surrogacy does not excuse either party—both are criminally liable,

·Any agreement between two or more persons to commit surrogacy is itself a criminal offence—commonly referred to as conspiracy,

·Two or more persons cannot contract or agree to do something that is against public policy or the law,

Regulation cannot override the existing laws against surrogacy without triggering legal contradictions, public backlash, and constitutional concerns.

While the bill sponsored by Hon. Uchenna Harris Okonkwo distinguishes between commercial surrogacy and altruistic surrogacy—seeking to promote altruistic surrogacy while prohibiting commercial surrogacy—the bill sponsored by Hon. Olamijuwonlo Alao-Akala seeks to establish a surrogacy regulatory commission. However, Section 30(1) of the Child Rights Act 2003 outlaws both commercial and altruistic surrogacy.

The Child Rights Act is a federal law enacted to protect children’s rights across Nigeria. The long title of the Child Rights Act reads that the law is made “… to provide and protect the rights of a Nigerian child; and other related matters.” The use of the adjective Nigerian before the word child implies that the Act is intended to apply to all Nigerian children across the country.

However, the Constitution of Nigeria does not assign issues of child rights to either the Federal Government or Local Governments, leaving such matters under the jurisdiction of the State Governments. This is one reason some states in Nigeria have gone on to enact their own Child Rights Laws, which are largely replicas of the federal Act. Unfortunately, some states in the northern part of Nigeria have failed or refused to enact such laws, even as children are subjected to early marriage and persistent rights violations.

On this note, surrogacy is a criminal offence in the Federal Capital Territory, Abuja, under the Child Rights Act, and also criminal in states that have enacted the Child Rights Laws. Consequently, surrogacy will not be criminal in states that have not enacted the Child Rights Law.

Section 30(1) of the Child Rights Act 2003, which incorporates the rights of the child as enshrined in the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child, outlaws both altruistic surrogacy and commercial surrogacy.

Section 30(1) reads:

“No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child.”

This provision clearly frowns upon the processes and procedures involved in surrogacy. At this point, it is important to list the elements present in every surrogacy arrangement and compare them with the verbs listed in Section 30 of the Child Rights Act to fully understand the impact of this law on surrogacy in Nigeria.

While the phrase “buy, sell, hire, let on hire” clearly outlaws commercial surrogacy, the phrase “dispose of or obtain possession of or otherwise deal in a child” equally outlaws altruistic surrogacy.

Therefore, surrogacy is a criminal offence under the Child Rights Act, and both commercial and altruistic surrogacy are punishable by imprisonment for ten (10) years.

Even in cases of altruistic surrogacy, where surrogate mothers perform their role without receiving or charging any fee, it remains illegal under Nigerian law. For example, a biological mother of a woman experiencing difficulties with pregnancy may agree to become a surrogate and bear a child for her daughter. Even in such altruistic arrangements—where, arguably, parties do not “buy, sell, hire, or let on hire,” but instead “dispose of or obtain possession of or otherwise deal in a child”—the act remains unlawful and illegal.

In other words, the Child Rights Act and Child Rights Laws in Nigeria criminalize all forms of the exchange of babies—whether commercial surrogacy involving money (buying, selling, or hiring of babies) or altruistic surrogacy (disposing of or obtaining possession of a child without payment).

To this end, surrogacy, whether commercial or altruistic, is unlawful in parts of Nigeria where the Child Rights Act or equivalent State Child Rights Laws are in operation.

Therefore, if parties in a surrogacy arrangement “buy, sell, hire, let on hire, dispose of, or obtain possession of or otherwise deal in a child,” such actions are criminal and punishable under the Child Rights Act and its equivalents in states across Nigeria.

No matter how unpopular a law may be, it remains valid until amended or repealed by the legislature.

Surrogacy Under the TIPPEA Act

Similarly, both commercial and altruistic surrogacy are outlawed under the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2003 (as amended in 2015).

Section 13 of the TIPPEA Act condemns all forms of human trafficking. It provides:

Section 13(1) – All acts of human trafficking are prohibited in Nigeria.
Section 13(2) – Any person who recruits, transports, transfers, harbours, or receives another person by means of:

· (a) threat or use of force or other forms of coercion;

· (b) abduction, fraud, deception, abuse of power or of a position of vulnerability; or

· (c) giving or receiving payments or benefits to achieve the consent of a person having control over another person

for the purpose of exploitation of that person, commits an offence and is liable on conviction to imprisonment for a term of not less than 2 years and a fine of not less than ₦250,000.

Section 82 of the TIPPEA Act defines trafficking in persons to include:

“…the giving or receiving of payments or benefits to achieve the consent of a person having control over another person or debt bondage for the purpose of placing or holding the person—whether or not in involuntary servitude (domestic, sexual or reproductive)—in forced or bonded labour, or in slavery-like conditions, the removal of organs, or generally for exploitative purposes.”

This definition clearly captures the essence of surrogacy arrangements and implicates all parties involved—including surrogate mothers, commissioning parents, doctors, lawyers, and agents—wherever there is:

“the giving or receiving of payments” (i.e., commercial surrogacy), or
“benefits to achieve the consent of a person having control over another person” (i.e., altruistic surrogacy).
Thus, Section 13 of the TIPPEA Act outlaws both commercial and altruistic surrogacy.

The Act further defines exploitation to include:

“…at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, deprivation of the offspring of any person, forced labour or services or practices similar to slavery, servitude or the removal of organs.”

Under this provision, any surrogacy arrangement that takes advantage of a surrogate mother—whether through coercion, voluntary consent, or deception—constitutes human trafficking and is therefore criminal.

This is one of the reasons why surrogacy practices, including the operation of so-called “baby factories” (where girls and women are forced or deceived into becoming pregnant and giving birth for others in exchange for money), are criminalized.

Section 21 of the TIPPEA Act

Section 21 of the TIPPEA Act also criminalizes both commercial and altruistic surrogacy. It provides:

“Any person who buys, sells, hires, lets or otherwise obtains the possession or disposal of any person with intent, knowing it to be likely, or having reasons to know that such a person will be subjected to exploitation, commits an offence and is liable on conviction to imprisonment for a term of not less than five (5) years and a fine of not less than ₦2,000,000.”

This provision specifically condemns and criminalizes all forms of surrogacy, whether commercial or altruistic, and applies to all persons and agents (including medical and legal professionals) involved in such exploitative arrangements.

In sum, all forms of surrogacy that exploit surrogate mothers are criminalized and punishable by:

a minimum of five (5) years imprisonment, or
a fine of not less than ₦2,000,000, or
both.
Unlike the Child Rights Act and the various State Child Rights Laws, the TIPPEA Act is a federal law that is operational in all parts of Nigeria. All states in Nigeria are bound by the provisions of the TIPPEA Act. The TIPPEA Act condemns surrogacy where a surrogate mother or her baby is exploited, and focuses on protecting victims of reproductive exploitation. The conduct of surrogacy can amount to human trafficking, which is a federal offence.

The Surrogacy Bills violate Sections 17(3)(h), 21, 33, 37, and 38 of the 1999 Constitution. Pursuant to Section 17(3)(h), the Nigerian government is obligated to promote the protection of the family. According to the Nigerian Law Reform Commission, the family is the fundamental unit of society and the custodian of the moral and traditional values of the Nigerian people; thus, it requires adequate safeguarding and development. The destruction of the family institution invariably leads to the destruction of Nigerian society.

Surrogacy undermines the family institution—as has occurred in Europe and America. Under surrogacy regimes, authorities facilitate sperm storage and donation, thereby obliterating the concept of parenthood. It will become difficult to determine who the legal father or mother of a child is, whether born in or out of wedlock. This will inevitably lead to social conflict and legal disputes over paternity, contributing to increased divorce rates and undermining inheritance laws.

Furthermore, marriages will be destabilized, as either partner may choose to procreate without the other. Single motherhood will rise, as women may choose to purchase sperm for fertilization. Litigation over paternity and child identity will become more common.

However, Section 21(a) of the 1999 Constitution enjoins the State to protect, preserve, and promote Nigerian culture. Practices such as sperm donation, cloning, in-vitro fertilization (IVF), and surrogacy are not part of our cultural values. Every society has its own values and should grow in accordance with those values. Nigeria has her own values, and we must adhere to and preserve them.

Laws must reflect the values of the people. Every country seeks to protect what it holds dear. It is suicidal to import foreign lifestyles and impose them as law under the guise of complying with international obligations. As Professor John Ademola Yakubu states in his book Who Gives the Law? Determining the Jurisprudential Question, the only way to avoid chaos in society is for the legislature to make laws that align with the values and aspirations of the people.

More importantly, the National Assembly, by virtue of Section 4(1) and (2) of the Constitution, is empowered to make laws that conform to the social and religious realities of the country.

Surrogacy is incompatible with cherished human values as enshrined in many African and international human rights instruments, including the African Charter on Human and Peoples’ Rights, which has been domesticated in Nigeria. Surrogacy reduces a human being to a commodity and equates them with animals.

The Preamble to the African Charter states:

“Taking into consideration the virtues of their historical tradition and the values of African civilization which should inspire and characterize their reflection on the concept of human and peoples’ rights; Conscious of their duty to achieve the total liberation of Africa, the peoples of which are still struggling for their dignity and genuine independence, and undertaking to eliminate colonialism and neo-colonialism…”

Article 8 of the Charter provides:

“Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be subjected to measures restricting the exercise of these freedoms.”

Article 29 states:

“The individual shall have the duty to preserve and strengthen the national independence and the territorial integrity of his country and to contribute to its defence in accordance with the law; to preserve and strengthen positive African cultural values in his relations with other members of society, in the spirit of tolerance, dialogue and consultation, and in general, to contribute to the promotion of the moral well-being of society.”

In any case, the distinction between commercial surrogacy and altruistic surrogacy in Nigeria is unclear and impractical. Surrogacy in Nigeria has become a money-spinning business. Altruistic surrogacy is rare, as nearly all surrogacy involves monetary compensation or other benefits. It is difficult to distinguish between commercial and altruistic surrogacy when 99% of surrogacy arrangements are commercial in nature. The woman whose womb is rented is typically paid large sums of money or receives other benefits. Few, if any, engage in surrogacy for free in Nigeria.

Nigeria is rapidly becoming a surrogacy hub. Surrogacy practices prey on the economic vulnerability of Nigerian women. In many cases, women—sometimes minors—are recruited through deceptive Facebook ads and trafficked to other countries to serve as surrogates. This is not empowerment; it is exploitation. Many Nigerian girls coerced into becoming surrogate mothers are either unaware of the full risks involved or are pressured into agreements they cannot freely reject.

Surrogacy is one of the greatest forms of exploitation of girls and women. It is inhumane to ask a young woman to carry a child for nine exhausting months, only to have the baby taken from her while she walks away forlorn and dejected. This is the ultimate objectification of women, and a grave violation of their rights.

Moreover, surrogacy poses serious health risks to Nigerian girls and women. The physical and psychological consequences of surrogacy—ranging from pregnancy complications to long-term emotional trauma, especially when they are forced to give up the baby they carried—are enormous.

Surrogacy also undermines a child’s right to identity, the right to know their origins, and the right to be protected from sale and commodification. This is in violation of Articles 7 and 8 of the United Nations Convention on the Rights of the Child (CRC), to which Nigeria is a signatory.

In other words, establishing and preserving identity becomes impossible for children born through surrogacy. Articles 7 and 8 of the CRC protect a child’s right to:

· be registered at birth,

· preserve their identity, and

· re-establish their identity if they have been illegally deprived of it.

Surrogacy arrangements often violate these provisions, as the child may be denied access to information about their true origins, rendering them vulnerable to identity loss and legal limbo.

Surrogacy is dehumanizing—whether or not the woman consents. Often, consent is obtained through coercion or deceit, making the entire process exploitative. Motherhood or “renting wombs”, even with consent, is inherently dehumanizing, as it reduces women to mere vessels. Surrogacy aims to legalize the manipulation and commercial use of women’s wombs, involving embryo manipulation, the import and export of human embryos, embryo transfer or splitting, and the harvesting of human eggs and sperm.

Therefore, even if consent is given willingly and without external coercion, it does not legalize surrogacy. A person cannot consent to break the law. When two people agree to do something unlawful, it is called conspiracy, which is punishable under Nigerian law. In criminal law, consent is not a valid defense unless the law specifically provides for it (e.g., in medical procedures or sports). You cannot enter a contract to violate public policy or existing law.

In Nigeria, many surrogates are economically vulnerable. Their so-called “consent” is often induced by poverty, misinformation, or pressure, making the process ethically and legally questionable.

Under Nigerian law, consent to commit surrogacy does not excuse criminal liability—both parties are criminally responsible. Surrogacy agreements are unenforceable in Nigeria. Even when both the surrogate and the intending parents agree, if the act violates laws such as the TIPPEA Act, their consent becomes legally irrelevant. Consent to commit an illegal act does not make it lawful.

For example, Section 516 of the Criminal Code criminalizes conspiracy to commit a felony, even if the felony has not yet been committed.

In summary: Under Nigerian law, two people cannot lawfully consent to engage in surrogacy. The law remains supreme over private agreements.

On Regulation of Surrogacy:

The two surrogacy bills emphasize regulation, but regulating surrogacy cannot cure the deep-rooted criminality and exploitation associated with it in Nigeria. Surrogacy is illegal and should remain so. Attempts to regulate surrogacy have failed globally to protect women and children.

Regulation would only legitimize an illegal and exploitative practice. When surrogacy involves payment for babies, benefits, misrepresentation, or coercion, it constitutes child trafficking, which is a crime under the TIPPEA Act.

You cannot regulate what is inherently criminal—it’s like trying to regulate armed robbery or fraud. The proper response is prohibition and enforcement, not regulation.

Regulation cannot ensure truly informed consent in the context of surrogacy. Instead, it would institutionalize exploitation, commodify poor women’s wombs, and reduce children to products. You can’t regulate a snake because it will still bite. You can’t regulate illegality because it will still cause harm.

Even with regulation, baby factories and human trafficking will continue in Nigeria. There are many so-called “surrogacy clinics” in Nigeria that are fronts for baby factories, exploiting women (often minors). These are criminal enterprises masquerading as fertility centers, and no amount of paper regulation will stop them from operating in secrecy.

If surrogacy is regulated in Nigeria, it would become a cover for baby-selling and baby factories. People would continue to buy and sell babies under the guise of altruistic surrogacy.

The Real Challenge is Enforcement, Not New Laws

Nigeria already has anti-human trafficking laws, like the NAPTIP Act and the Child Rights Act, both of which outlaw surrogacy. But enforcement is almost nonexistent. Even if surrogacy is regulated:

Bribery
Lack of prosecution
Judicial inefficiency
…will continue to allow abuse.

Regulation cannot fix surrogate-related criminality in Nigeria because the root problem is not a lack of regulation, but rather:

Fundamental illegality
Exploitation
Weak oversight
Systemic abuse

Our real challenges include:

Corruption in law enforcement and medical institutions
Lack of political will
Weak institutional capacity
Poverty and desperation that push women into surrogacy
Without effective law enforcement, public education, accountability mechanisms, and a strong ethical commitment to human dignity, regulation becomes a mere formality, easily circumvented by criminals.

What Nigeria Needs:

Nigeria does not need surrogacy regulation. What it needs is:

Strict criminal enforcement against surrogacy and baby-selling
Ethical adoption and child protection frameworks
Strengthened anti-trafficking enforcement
Crackdown on baby factories
Political will to enforce relevant provisions of the TIPPEA Act and Child Rights Act 2003
Programs to fight poverty
Anti-corruption reforms in law enforcement
Cultural and Moral Concerns

Legalizing surrogacy in Nigeria raises serious moral, cultural, and religious concerns, especially in our deeply conservative society. It could trigger public backlash, erode trust in legislators, and undermine social cohesion.

Therefore, the two surrogacy bills, sponsored by Hon. Uchenna Harris Okonkwo and Hon. Olamijuwonlo Alao-Akala, lack merit and should be discarded.

If the Sponsors Must Proceed…

If Hon. Uchenna Harris Okonkwo and Hon. Olamijuwonlo Alao-Akala insist on proceeding with the bills, they must organize well-publicized public hearings and invite key stakeholders, including:

National Agency for the Prohibition of Trafficking in Persons (NAPTIP)
Nigerian Medical Association (NMA)
Nigerian Bar Association (NBA)
Nigerian Law Society (NLS)
African Bar Association (AfBA)
National Association of Nigerian Nurses and Midwives (NANNM)
Pharmaceutical Society of Nigeria
Medical Laboratory Scientists
Churches, mosques, and traditional institutions
The bills must not be hatched or passed in secrecy.

If democracy is government of the people, by the people, and for the people, then the Nigerian people must be given an opportunity to contribute to the legislative process.

Beware of Foreign Exploitation

Nigeria must not become a dumping ground for toxic foreign practices. Imagine homosexual couples from abroad coming to Nigeria to hire poor, desperate Nigerian girls as surrogates. Once the babies are delivered, they flee the country, leaving no protection for the women.

In some cases, babies’ organs are harvested or they are used for rituals and fetishism.

Shockingly, university girls are now selling their eggs to the highest bidder. At the University of Ibadan (UI), this practice has become so rampant that the university authorities issued a memo warning female students of the grave consequences, including potential infertility in the future.

Final Word

Let us wake up and embrace our cultural heritage and philosophical aspirations. If Europe and America now define themselves by surrogacy and other abrasive lifestyles, we must not blindly copy them. We are a different people, with different values.

A people without identity are a people without existence.

As I earlier stated, the National Assembly, by virtue of Section 4(1) and (2) of the 1999 Constitution, is empowered to make laws that reflect the aspirations and values of the Nigerian people—not foreign interests.

CONCLUDED

The views expressed by contributors are strictly personal and not of Law & Society Magazine.