In spite of the Nigeria Surrogacy Regulatory Commission Bill (2024), existing legal framework surrounding surrogacy in Nigeria has not entrenched confidence in the system as experts highlight loopholes that make it fall short of expectations in relation to other jurisdictions while they call for urgent comprehensive legal structure to protect the rights of parties. ADEOLA OJO reports.
Surrogacy, a kind of Assisted Reproductive Technology (ATR), used as treatment for infertility, has been in existence globally for years but it is just gaining ground in terms of recognition and acceptance in Nigeria basically because of entrenched beliefs and norms generally influenced by religion and culture. But while it has emerged as a significant reproductive option globally, it remains largely unregulated in Nigeria.
Surrogacy is a situation where a woman known as the surrogate mother becomes pregnant on behalf of another woman referred to as the commissioning mother and subsequently delivers the baby for her; the woman, acting as a third party, bears a pregnancy on behalf of the intended parents and relinquishes the child to them upon delivery.
Culturally, surrogacy remains a controversial topic. It is often misunderstood or viewed as taboo, with stigma preventing open discussions in many families. Religious opinions vary, with some leaders supporting it as a compassionate act and others questioning its morality. This cultural resistance adds another layer of complexity for those considering this path.
Types
There are two types of surrogacy: traditional and gestational. In traditional surrogacy, the surrogate uses her egg, making her the biological mother of the child. Gestational surrogacy, which is more common in Nigeria, involves the surrogate carrying an embryo created from the intended parents’ or donors’ egg and sperm, ensuring no genetic link between the surrogate and the child.
Surrogacy is often pursued due to infertility, health risks that make pregnancy unsafe for the intended mother, or advanced maternal age. It can also provide a pathway to parenthood for same-sex couples, although this remains a sensitive issue in Nigeria.
One of the biggest challenges surrounding surrogacy in Nigeria is the lack of specific laws regulating the process. Surrogates are often considered the legal mothers until custody is legally transferred, usually through parental orders or adoption processes.
But while there are initiatives to establish international frameworks aimed at ensuring best practices in the field, it is said that Nigeria has no legal instrument guiding the sector aside ethical provisions by agencies. According to the Attorney-General and Commissioner for Justice in Ondo State, Dr Ajulo (SAN), in an article titled, Surrogacy law and development in Nigeria published in December, 2024 “the Nigerian Constitution does not explicitly address surrogacy, leading to ambiguity in its legal recognition.”
He stated that “the Nigerian Child Rights Act (2003) emphasizes children’s rights but lacks provisions for surrogacy arrangements. While some states have laws related to assisted reproductive technology (ART), no specific regulations for surrogacy practices exist.”
Considering judicial precedents as a factor, he noted that “There is a scarcity of case law regarding surrogacy in Nigeria. Courts often rely on general family law principles, which can result in inconsistent rulings and uncertainty regarding legal parentage.”
Doing a comparative analysis with other countries, Ajulo stated that “countries like South Africa have established comprehensive legal frameworks governing surrogacy, providing clear guidelines and protections for all parties involved. South Africa’s Surrogacy Act (2002) allows both altruistic and commercial surrogacy under regulated conditions. In stark contrast, many African nations, including Nigeria, lack such comprehensive laws, raising concerns about potential exploitation and abuse in surrogacy arrangements.”
He also pointed at cultural and ethical considerations, noting that, “In Nigeria, cultural and religious beliefs significantly influence perceptions of surrogacy. Many view it as morally questionable, complicating the legal discourse surrounding the practice.”
He went further to say that, “the legal landscape of surrogacy in Nigeria is characterised by a lack of clear regulations and significant cultural challenges. As awareness of reproductive rights grows, there is an urgent need for comprehensive legislation to safeguard the rights of intended parents, surrogates, and children born through surrogacy. Legal reforms should aim to create a balanced framework that addresses ethical concerns while facilitating access to surrogacy as a viable reproductive option,” he submitted.
The Bill
Last year, the House of Representatives passed a Bill seeking to establish the Nigeria Surrogacy Regulatory Commission (NSRC) for monitoring and supervision of surrogacy arrangements in Nigeria with a view to providing for the registration, regulation and monitoring of surrogacy agencies in Nigeria and related matters. This was not the first time such will come up. In 2012, a similar Bill for the establishment of a Nigerian Assisted Reproduction Authority, was presented at the National Assembly and it passed the second reading on May 2, 2012 but it was not passed into law because it did not enjoy the support of the majority of the National Assembly.
The Surrogacy Bill 2024 basically seeks to establish the NSRC for the monitoring and supervision of surrogacy arrangements in Nigeria and to provide for the registration, regulation and monitoring of surrogacy agents in Nigeria.
It also introduces the NSRC which is expected to be a corporate body with perpetual succession to establish and maintain a Surrogate Registry in the Federal Capital Territory and in each state of the federation, regulate and oversee all matters relating to surrogacy in Nigeria and advise the Minister on policies and regulations governing surrogacy.
The Bill provides that no person or entity shall operate as a surrogacy agency without being registered with the Corporate Affairs Commission (CAC) and the NSRC and while it did not expressly define what a surrogacy agency is, it sounds like an outfit that facilitates surrogacy process, acting as an intermediary between intended parents and surrogate mothers.
The Bill further says that every registered surrogacy agency shall establish and maintain a private registry of all parties involved in surrogacy arrangements and will have information such as names, addresses and contact details of the surrogates, intended parents and any other person relevant to the surrogate arrangement facilitated by the agency.
To deter abuses, it proposes a penalty of N1,000,000.00 (one million naira) or imprisonment for a term not exceeding 5 years or both for any person or entity that operates as a surrogacy agency without registering with the NSRC.
The Bill also prohibits commercial surrogacy in Nigeria, making it wrong for any person or entity to offer or receive any payment, benefit or consideration in exchange for arranging a surrogacy, acting as a surrogate or entering into a surrogate arrangement.
The proposed law is equally to the effect that the only persons eligible for surrogacy in Nigeria are persons who have been medically certified as unable to conceive or carry a child to term, whether they are married couples or single persons.
Finally, the Bill seeks to make surrogate agreement voluntarily and based on the informed consent of all the parties, insisting such must be made in writing and signed by all parties involved.
Additionally, the agreement must be registered with the NSRC before the commencement of the surrogate arrangement.
The Bill proposes a penalty of N500,000.00 (five hundred thousand naira) or imprisonment for a term not exceeding 3 years or both for any person who contravenes the official clearance provision.
Like Nigeria, like UK?
Unlike Nigeria, the United Kingdom has laws on surrogacy:
The Surrogacy Arrangements Act (SAA) 1985, a piece of legislation that regulates surrogacy agreements and known for its provision for the unenforceability of surrogacy arrangements. The SAA 1985 prohibits any form of advertisement that suggests that a person is or may be willing to arrange or facilitate a surrogacy agreement, or that a person is searching for a surrogate mother or seeking individuals who want a surrogate.
The Human Fertilization and Embryology Act (HFEA) 2008 outlines the eligibility criteria and process for obtaining a parental order that legally transfers parental rights from a surrogate.
The proposed Bill on surrogacy in Nigeria has some similarities with the laws governing surrogacy in UK, although differences abound, like both the Nigerian Bill and UK surrogacy laws prohibiting commercial surrogacy.
However, while the Nigerian Bill appears to prohibit every person involved in a surrogacy arrangement entirely without any exception, the SAA 1985 provides that it shall not be an offence for a surrogate mother or intended parent(s) to engage in commercial surrogacy. Thus, it appears to prohibit only third parties from benefiting from the surrogacy agreement. It is an offence for them to do so.
While the SAA 1985 expressly provides that any surrogacy arrangement entered into in the UK is unenforceable, there is no such provision in the NSRC Bill 2024. The Bill rather made provisions that will ensure that a surrogacy arrangement must be in writing and with the informed consent of all parties involved, which must be registered by the NSRC.
Prima facie, it seems that the Bill intends for the arrangement to be enforceable, with surrogacy being regarded as a contractual agreement.
Additionally, pursuant to the HFEA 2008, a parental order must be obtained from the court by intending parents so as to transfer parental rights to the applicants (intending parents). This provision is not embedded in the NSRC Bill 2024. Consequently, this omission in the Bill may translate to mean that there is no requirement for such parental order in the Nigerian jurisdiction once the provision of the law, especially with respect to the surrogacy arrangement is complied with by all parties involved.
Gaps
It is said that without legislative measures to regulate surrogacy in Nigeria, most artificial reproductive technology clinics in Nigeria base their operations on the Human Fertilisation and Embryology Authority Guidelines of the United Kingdom.
The Nigerian Law Reform Commission also recommended 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 a marriage must be regarded as a child of the husband, adding that where a child is born under a surrogacy agreement, the commissioning parents should formally adopt the child, even if the child is the biological child of the commissioning parents as a means to prevent the surrogate mother from returning to claim the child.
The NSRC Bill, 2024, is believed to have introduced the much-needed legal framework for surrogacy in Nigeria, aiming to safeguard the rights of all parties involved. And while it was described as a welcome development in Nigeria with respect to the practice of Family Law, there have been recommendations by professionals on the need to have a comprehensive legislation on surrogacy, to address certain legal, ethical and medical issues surrounding surrogacy in Nigeria.
Also, while there are calls that the Bill should integrate more International Best Practices in order to ensure that the welfare of all parties involved is protected, it is yet passed into law.
The Hague Convention provides a platform to regulate cross-border surrogacy using the perspective of inter-country adoption but since the Hague Convention seeks to expressly regulate inter-country adoption and not international surrogacy, there is advocacy for the development of a new private international law instrument to expressly regulate surrogacy arrangements.
In Nigeria, there are renewed calls for legislative action as surrogacy gets more entrenched. The Nigerian government has been asked to prioritise the creation of a comprehensive legal framework for surrogacy that outlines the rights and responsibilities of all parties involved.
Also, there are campaigns for more awareness initiatives to educate the public about surrogacy and its legal implications to help reduce stigma and promote informed decision-making in addition to establishing ethical guidelines for surrogacy practices that protect vulnerable populations and ensure fair treatment of surrogates.
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