Ban on commercial surrogacy in Nigeria: Will this ban help or harm?

ADEOLA OJO in this report explores the questions arising from the recent move to ban commercial surrogacy in Nigeria and whether the development will add the expected value or entrench the risk that an outright ban on commercial surrogacy will simply push the practice underground and rather than eliminate the demand, force intended parents to seek unregulated surrogacy services, exposing both the surrogate mother and the child to even greater danger.

Globally, surrogacy is an acceptable and trusted path to parenthood whether due to infertility issues or because they aren’t interested in carrying a baby themselves. This is usually a pattern that is seen in the case of celebrities like Kim Kardashian and Gabrielle Union. And in some cases, surrogacy offers the only chance to start or grow a family when medical challenges, age or other personal circumstances make pregnancy impossible.

Surrogacy is a process in which a woman carries and delivers a child for another individual or couple and it is increasingly becoming a lucrative industry in Nigeria under the umbrella of reproductive freedom but there are arguments that it has led to the commodification of children and the exploitation of economically disadvantaged women.

And in Nigeria, surrogacy is not illegal but the practice is still largely unregulated and widely misunderstood; also, there is no law regulating it as contracts between surrogates and intended parents are based on informal agreements with no legal guarantee that intended parents will be recognised as the child’s legal parents.

This legal vacuum often creates confusion and potential exploitation, leading to baby factories: where women are exploited to produce children for sale, online brokers offering surrogacy arrangements with no medical or legal oversight, health risks for surrogates without proper antenatal care or post-delivery protection and above all, a legal limbo where children may not be legally recognised as belonging to the intended parents.

But there seems to be a change on the way as the House of Representatives is working towards banning commercial surrogacy in Nigeria through the introduction of a bill that will establish a legal framework that strictly regulates the practice for altruistic purposes only, allowing only non-profit surrogacy under strict guidelines.

The proposed law, titled: “A Bill for an Act to Protect the Health and Well-being of Women, Particularly in Relation to Surrogacy and for Related Matters,” is sponsored by Hon. Uchenna Okonkwo, who represents the Idemili North/Idemili South Federal Constituency of Anambra State, includes penalties of up to two years in prison or a ₦2 million fine for anyone who violates its provisions.

According to the lawmaker, the proposed legislation aims to protect the rights and welfare of women involved in surrogacy by outlawing financial gain from such arrangements and ensuring practices remain ethical, safe and transparent. And if passed, it will be illegal to pay women to carry pregnancies beyond reimbursing medical and pregnancy-related expenses. It also legalises and endorses only altruistic surrogacy, where no profit is involved and participation is voluntary.

Additionally, the bill stipulates that surrogate mothers must be at least 21 years old, ensuring they possess the emotional and psychological maturity required for the process. It mandates compulsory counselling sessions for both surrogate mothers and intended parents, aimed at preparing all parties for the emotional and ethical implications of surrogacy.

It further protects against coercion or forced surrogacy arrangements, emphasising that no woman should be pressured or manipulated into becoming a surrogate and individuals, agencies, or healthcare providers who violate these provisions could face up to two years in prison, a fine of up to ₦2 million or both.

Provisions of the Bill:

The Bill made explicit provisions which include the following:

Prohibition of commercial surrogacy: The bill explicitly bans the practice of commercial surrogacy, where a surrogate mother is paid a fee for carrying a child.

Regulation of Altruistic surrogacy: The bill allows for surrogacy arrangements where the surrogate mother is not paid beyond reimbursement for medical and pregnancy-related expenses.

Protection for surrogates: The bill includes provisions to protect surrogate mothers from coercion and forced surrogacy arrangements.

Mandatory counseling: Both surrogate mothers and intended parents would be required to undergo counseling to ensure informed consent and understanding of the implications of surrogacy.

Regulations and penalties: The bill proposes the establishment of a Surrogacy Regulatory Commission to oversee and regulate surrogacy practices in Nigeria, with penalties for those involved in commercial surrogacy.

Age requirement: Surrogate mothers would need to be at least 21 years old.

Voluntary agreements: All surrogacy agreements would have to be voluntary, in writing, and clearly outline the responsibilities of all parties involved.

Evaluations: Medical and psychological evaluations would be mandatory for both surrogates and intended parents.

The Bill in parts

In Part II of the bill, it is stated that a woman must give informed consent before undergoing any medical treatment, including those associated with surrogacy. It further stipulates that no woman shall be forced or coerced into a surrogacy arrangement.

Part III of the bill explicitly prohibits commercial surrogacy and endorses altruistic surrogacy. It lays out conditions for valid altruistic arrangements, such as requiring the surrogate mother to be at least 21 years old, to have given informed consent, and to have undergone counselling. The intended parents are also required to undergo counselling.

In Part IV, it focuses on the protection of surrogate mothers, guaranteeing their right to medical care during and after pregnancy. It also provides for reasonable compensation to cover pregnancy-related and childbirth expenses.

And under Part V, which deals with offences and penalties, the bill states that anyone who coerces a woman into surrogacy, engages in commercial surrogacy, or fails to comply with the provisions for altruistic surrogacy commits an offence and, upon conviction, is liable to a fine not exceeding N2 million, a prison term not exceeding two years, or both.

This Bill marks Nigeria’s first formal effort to regulate surrogacy, a practice that has so far operated in a legal grey area, even against customs and religious beliefs. And according to a school of thought, it is coming at the right time considering allegations of unethical practices, the exploitation of vulnerable women and the commodification of children through unregulated surrogacy arrangements.

And while it marks Nigeria’s first serious legislative step to regulate a practice that has quietly grown in Nigeria’s unregulated reproductive health sector, there question that hangs on the Bill in many quarters is; will this ban help or harm?

Some have argued that in spite of the new law if passed, there will still be some key legal gaps which includes the fact that Nigeria still lacks a parental order system which would automatically transfer legal parentage to the intended parents, there are no clear rules about the surrogate’s rights especially in a situation where she changes her mind, the issue of child protection mechanisms specific to surrogacy-born children and the role of oversight agencies to regulate surrogacy clinics and brokers.

In its perspective on the matter, Lawpàdí, a law based site said that “the proposed bill makes an important step towards protecting vulnerable women from exploitation in Nigeria’s growing but unregulated surrogacy market. By criminalising commercial surrogacy, the bill directly targets baby factories, black-market brokers, and unscrupulous clinics that have historically profited from the desperation of childless couples and the poverty of women willing to carry pregnancies for financial compensation. It sends a clear message that baby-selling under the guise of surrogacy will not be tolerated. However, while the bill gets this protective intention right, it leaves significant gaps that could create unintended harm. By focusing solely on banning commercial surrogacy, the legislation fails to offer a comprehensive regulatory framework that addresses the real complexities of surrogacy arrangements.”

It added that Nigeria still lacks clear laws on parentage and clear answers to questions like who is the legal parent of a child born through surrogacy? How are disputes between surrogates and intended parents to be resolved?, adding that  “without answers to these questions, surrogacy in Nigeria, even altruistic surrogacy remains legally fragile.”

It highlighted that there is also a very real risk that an outright ban on commercial surrogacy will simply push the practice underground. Instead of eliminating the demand, the ban may drive intended parents to seek unregulated surrogacy services, exposing both the surrogate mother and the child to even greater danger.

“Nigeria could borrow a leaf from South Africa’s book. South Africa permits both altruistic and gestational surrogacy, but strictly regulates the entire process under the Children’s Act, 2005 (as amended),”it said, highlighting some key features to include court approval before pregnancy to ensure the arrangement is fair, that the intended parents meet strict eligibility criteria and that the surrogate has given fully informed consent; no commercial surrogacy and surrogate can only be reimbursed for reasonable expenses related to the pregnancy, automatic legal parentage for the intended parents removing the need for adoption or parental orders after delivery, psychological assessments and medical screening.

“The effort to criminalise commercial surrogacy in Nigeria is a well-intentioned attempt to protect women and children from exploitation. However, experience from other countries like South Africa shows that simply banning payment is not enough; when surrogacy is pushed underground, the risks often multiply: women face unsafe conditions, intended parents lose legal certainty, and children are left in vulnerable legal positions.

 “South Africa’s regulated approach demonstrates that surrogacy can be safe, ethical, and legally sound if supported by clear laws. Their system protects surrogate mothers through pre-approval court processes, guarantees parentage from birth for intended parents, and ensures that all parties are psychologically and medically prepared. Nigeria has an opportunity to learn from this. Rather than stopping at prohibition, we can build a system that recognises the realities of modern families while upholding the rights and dignity of everyone involved,” Lawpadi concluded.

Making a case for the banning of commercial surrogacy in Nigeria, a social media user, Bishop Kingzolite, said the House of Representatives proposed the bill to ban commercial surrogacy, citing several concerns that warrant careful consideration and a desire to protect the rights and dignity of women, ensure safe and ethical surrogacy practices, and uphold Nigerian values.

According to him, “one of the primary reasons for the proposed ban is the risk of exploitation of surrogate mothers, particularly those in vulnerable economic situations. Commercial surrogacy can lead to the commodification of women’s bodies, where they are treated as mere vessels for hire. By banning commercial surrogacy, the bill seeks to prevent the exploitation of women and ensure that they are not coerced into surrogacy arrangements that prioritize the interests of intended parents over their own well-being.

“The proposed ban is also driven by ethical concerns about the nature of commercial surrogacy. Some people believe that commercial surrogacy reduces human life to a marketable commodity, undermining the dignity and worth of both the surrogate mother and the child. By prohibiting commercial surrogacy, the bill aims to uphold ethical standards and ensure that human life is treated with the dignity and respect it deserves.

“The lack of clear regulations governing surrogacy practices in Nigeria has led to abuses and inconsistencies. The proposed ban seeks to establish a comprehensive legal framework that ensures safe, ethical, and regulated surrogacy practices. By doing so, the bill aims to protect the rights and interests of all parties involved, including surrogate mothers, intended parents, and children born through surrogacy.

“The ban on commercial surrogacy may also be intended to protect women from being coerced or pressured into surrogacy arrangements that may not be in their best interests. By prohibiting commercial surrogacy, the bill seeks to safeguard the rights and dignity of women, particularly those in vulnerable situations.

“Finally, the proposed ban reflects cultural and societal concerns about the compatibility of commercial surrogacy with Nigerian values. Some Nigerians may view commercial surrogacy as a Western import that undermines traditional values and family structures. By banning commercial surrogacy, the bill aims to uphold Nigerian values and ensure that surrogacy practices are aligned with the country’s cultural and societal norms,” he stated.

The bill is expected to be debated in the coming days. If passed, this would be the first time Nigeria enacts specific legislation addressing the issue of surrogacy by providing a comprehensive legal framework for surrogacy.

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