Authorized Framework For Surrogacy In Nigeria – Household Regulation – Nigeria


LEGAL FRAMEWORK FOR SURROGACY IN NIGERIA1

1. Introduction

With the rise in infertility charges everywhere in the
world,2 an increasing number of {couples} are trying into the use
of Assisted Reproductive Expertise (ART) strategies, resembling
surrogacy, to allow them develop into mother and father. For {couples} who’re
unable to naturally conceive resulting from infertility points in both
associate brought on by persistent or terminal sicknesses, and well being
problems, the choice of surrogacy, although considerably pricey,
provides some reprieve. Nigerian {couples} dealing with infertility aren’t
omitted of the combo in all of this, as in recent times, many have
embraced the choice of surrogacy.

As surrogacy turns into extra widespread, many international locations have
enacted legislations to control surrogacy.3 Nigeria is
not one in every of these international locations, as though the nation doesn’t
prohibit surrogacy, it has not laid down any authorized framework to
govern the surrogacy course of. This leaves each the couple and the
intending surrogate mom in a authorized vacuum, whereby the events
are uncovered to authorized dangers.

This text briefly considers the Nigerian authorized stance
relating to surrogacy and proposes a creation of a transparent authorized
framework for surrogacy in Nigeria, whereas advising as to authorized
safeguards to be taken by {couples} meaning to conceive by way of
surrogacy within the interim.

2. What’s Surrogacy?

Surrogacy is a type of third-party replica wherein a girl
consents to hold a being pregnant for meant dad or mum(s) who can’t
conceive for medical causes.4 Surrogacy can also be
outlined as an association (usually backed by regulation) wherein a girl
(the surrogate) agrees to imagine duty for the
pregnancy-related labour and supply of a kid on behalf of
one other particular person or couple (the meant or commissioning
dad or mum(s)).5 In abstract, surrogacy is the method of
carrying and delivering a toddler for one more.

Surrogacy is often primarily based on the settlement that the kid will
be given to the commissioning mother and father after supply and could also be
labeled into two sorts: conventional surrogacy and gestational
surrogacy. Conventional surrogacy is a being pregnant wherein a girl
offers her personal egg, which is fertilized by synthetic
insemination, and carries the foetus and offers delivery to a toddler for
one other particular person.6Right here, the surrogate mom contributes
genetically to the conception, and is each the organic and
gestational mom of the kid. However, gestational
surrogacy which can be known as host surrogacy is a
being pregnant wherein one lady (the genetic mom) offers the egg,
which is fertilized, and one other lady (the surrogate mom)
carries the foetus and offers delivery to the kid.7 In
this occasion, the surrogate mom doesn’t contribute genetically
to the conception of the kid and is strictly the provider of the
being pregnant i.e., gestational mom. Each varieties of surrogacy at the moment are
commonplace in Nigeria, although gestational surrogacies have gotten
the extra widespread possibility resulting from authorized challenges such because the
identification of the rightful mom usually arising in conventional
surrogacy.8

Moreover, surrogacy could also be industrial or altruistic,
relying upon whether or not the surrogate receives monetary reward for
her being pregnant.9 In case of altruistic surrogacy, a
surrogate doesn’t obtain any financial compensation and majority
of those agreements usually contain shut family of the meant
mother and father.10 Many international locations frown upon industrial
surrogacy, and solely allow altruistic surrogacy
preparations.11

3. Lack of Authorized Framework for Surrogacy Agreements in Nigeria
and its Conversant Dangers

Whereas surrogacy isn’t expressly prohibited in Nigeria, it additionally
isn’t legally acknowledged, as there may be at the moment no authorized
framework regulating surrogacy in Nigeria. In contrast to many different
international locations, Nigeria lags behind in surrogacy settlement regulation,
which is disappointing contemplating the growing variety of
surrogacy agreements entered into every day within the
nation.

The closest Nigeria has come to regulation of surrogacy is the
presentation of the Assistive Reproductive Expertise (Regulation)
Invoice 2016.12 Regrettably, until date, that Invoice has not
been handed into regulation. Solely Lagos State has handed pointers on
Assisted Reproductive Expertise in 2019,13 the
remaining 35 states in Nigeria and the Federal Capital Territory
are but to enact any laws to control assisted fertility
strategies.14

Regardless of this, surrogacy has not been criminalized in Nigeria,
since it isn’t outlined in any written regulation as an offence and no
punishment is prescribed for it.15 As such, if an individual
engages in surrogate motherhood or enters right into a surrogate contract
in Nigeria, such an individual can’t be mentioned to have dedicated against the law.
The underlying downside, nonetheless, is by way of legally defining
the authorized parentage of the kid in addition to the contractual rights
and duties of events to the surrogate settlement.16

In April 2022, a Nationwide Each day carried the story of a US-based
couple who had accused their Nigerian surrogate of absconding with
twin child boys, that have been the merchandise of their surrogacy
settlement. The surrogate, by means of her lawyer, nonetheless narrated a
totally different story, alleging that the couple had deserted her throughout
her being pregnant, inflicting her to be unable to foot the medical payments
of the infants. This motivated her determination to not hand over the
infants to the couple after their delivery.17

The above case is an instance of what occurs when agreements
occur in vacuo, with none underpinning regulation, statute or
regulation. There are lots of different instances like this in Nigeria, which
might have been preventable if a regulatory regulation and framework have been
in place. In any occasion, it’s uncertain that the referenced case
concerned any authorized settlement between the surrogate and the couple,
because the settlement was primarily based on their familial relationship. Thus, if
there have been any extant legal guidelines governing surrogacy in Nigeria, it’s
uncertain that this settlement would have been protected.

4. Authorized Safeguards for Getting into and Implementing a Surrogacy
Settlement

Whereas efforts to enact a authorized framework proceed in Nigeria,
events all for coming into surrogacy agreements are suggested to
take sure safeguards within the interim.

Firstly, events ought to guarantee they’ve a written contract in
respect of the surrogacy, delineating all rights and obligations of
every celebration. Surrogacy agreements are like common contracts and might
be enforced accordingly since there isn’t any regulation prohibiting the
contract. Amidst different necessities, most contracts require two key
components to make them legitimate and enforceable: All events should be in
settlement (primarily based on a proposal and acceptance), and one thing of
worth should be exchanged to function a consideration. Like most
jurisdictions, in Nigeria, as soon as a contract satisfies the required
components, it turns into enforceable. Thus, though there isn’t any regulation or
statute regulating the act of surrogacy in Nigeria, surrogacy
contracts and agreements stay enforceable.18

Nonetheless, a serious concern is whether or not surrogacy contracts will be
enforced in our nationwide courts, primarily based on public morality and
coverage grounds. Nonetheless, it has been asserted that whereas the
standpoint of morality and public coverage could current a opposite
view on the enforcement of surrogacy contracts; it doesn’t change
the truth that surrogacy contracts fall beneath legally enforceable
agreements.19 Thus, within the occasion of a botched surrogacy
settlement, events could search authorized recourse in a court docket of regulation. In a
nutshell, there’s a good risk that surrogacy agreements could
be enforced in our nationwide courts when put to judicial check.

Moreover, after the delivery of the infant, the commissioning
couple ought to take into account acquiring a custody order in Nigeria to be
sure their parental rights are acknowledged.

5. Conclusion

There’s a urgent want for Nigeria to enact laws
regulating surrogacy and different types of Assisted Reproductive
Expertise (ART) strategies, to curb doable abuse or exploitation of
these procedures. A primary step can be to transform the erstwhile
2016 ART Invoice, to enact a authorized framework for surrogacy which is
suitable with worldwide greatest practices and make sure the
Invoice’s passage.

Footnotes

1. Miracle Eme, Affiliate, SPA Ajibade & Co,
Lagos, Nigeria.

2. Swan S.H., & Colino S., ‘Reproductive Issues
in Each Males and Girls Are Rising at an Alarming Price’,
Scientific American, 16th March, 2021,
accessible at https://www.scientificamerican.com/article/reproductive-problems-in-both-men-and-women-are-rising-at-an-alarming-rate/
, accessed on 24th June 2022.

3. In England, surrogacy is regulated by the Surrogacy
Preparations Act 1985; in South Africa, by Chapter 19 of the
Youngsters’s Act 38 of 2005; In Greece, by Regulation 3305/2005 –
Enforcement of Medically Assisted Copy; in Israel, by
Embryo Carrying Agreements Regulation 1996, in Hong Kong, it’s regulated
by Human Reproductive Expertise Ordinance 2000; and in Russia, it
is regulated by Articles 51-52 of the Household Code of Russia and
Article 16 of the Regulation on Acts on Civil Standing.

4. See Encyclopedia of Copy (Second Version), Vol
5., 2018.

5. See https://www.varta.org.au/surrogacy/surrogacy-explained
accessed on 24th June 2022.

6. Black’s Regulation Dictionary, 9th ed. p,
1582.

7. Ibid.

8. See https://nordicalagos.org/surrogacy/ accessed on
24th June 2022.

9. Saxena P, Mishra A & Malik S., ‘Surrogacy:
moral and authorized points’, Indian J Group Med.,
Oct. 2012 ;37(4):211-3., accessible at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3531011/
accessed on 24th June 2022.

10. ‘Surrogacy Market 2021: International Business Dimension,
Share, Enterprise Progress, Income, Developments, International Market Demand
Penetration and Forecast to 2027’, accessible at https://www.taiwannews.com.tw/en/information/4384986,
accessed on 24th June 2022.

11. In jurisdictions like Belgium, Netherlands, and the
United Kingdom, industrial surrogacy is prohibited. Conversely, in
France, Italy and Germany, surrogacy, be it altruistic or
industrial, is prohibited.

12. See, https://placbillstrack.org/eighth/add/SB325.pdf,
accessed on 24th June 2022.

13. See https://lagosstate.gov.ng/weblog/2019/05/09/lasg-unveils-guidelines-to-regulate-assisted-reproductive-technology/
accessed on 24th June 2022.

14. ‘Time to Regulate Fertility Medication’,
ThisDay Reside, (Lagos: 23 November 2021) accessible at https://www.thisdaylive.com/index.php/2021/11/23/time-to-regulate-fertility-medicine/
, accessed on 21st June 2022.

15. See, Part 36 (12), Structure of the Federal
Republic of Nigeria 1999. Some writers have argued that surrogacy
is prison in sure components of Nigeria by advantage of Part 30 of
the Little one Rights Act which offers that: “No particular person shall
purchase, promote, rent, let on rent, eliminate or get hold of possession of or
in any other case deal in a toddler”. Nonetheless, there isn’t any court docket
determination implementing this provision.

16. O.S. Adelakun, ‘The idea of surrogacy in
Nigeria: Points, prospects and challenges’ (2018) 18 African
Human Rights Regulation Journal, p. 605-624, accessible at: http://dx.doi.org/10.17159/1996-2096/2018/v18n2a8
accessed on 24th June 2022.

17. ‘US-based couple accuses Nigerian surrogate
mom of absconding with twins’, Premium Occasions,

(Lagos: 8 April 2022), accessible at https://www.premiumtimesng.com/information/top-news/522663-us-based-couple-accuses-nigerian-surrogate-mother-of-absconding-with-twins.html,
accessed on 27th June 2022.

18. Sanni, S, ‘Authorized Method to Surrogacy In
Nigeria’, accessible at: https://www.mondaq.com/nigeria/family-law/840674/legal-approach-to-surrogacy-in-nigeria
, accessed on twenty seventh June 2022.

19. Ibid.

The content material of this text is meant to supply a normal
information to the subject material. Specialist recommendation ought to be sought
about your particular circumstances.

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