In recent decades, the practice of surrogacy has attracted international attention, with continued efforts in international legal documents to ensure best practices in surrogacy. Countries approach surrogacy from different angles, with some countries banning surrogacy altogether,1 while other countries allow surrogacy as long as it should not be marketed.2 Some countries3 are considered supportive of surrogacy because they explicitly allow surrogacy. while other countries do not have clear regulations for surrogacy.4 In surrogacy contracts, a third woman chooses a pregnancy on behalf of another couple or is responsible for carrying a pregnancy to term. gives birth to a baby and gives the child to the commissioning parents at birth. Depending on the existence or non-existence, two forms of genetic connection between the surrogate mother and the fetus are recognizable. If there is a genetic link, the surrogate mother is fertilized with the sperm of the commissioning father or the sperm of the donor, this is called « traditional surrogacy » and she is biologically the mother of the baby. If the pregnancy is in the woman as a result of in vitro fertilization and she has no genetic contribution to the fetus, this is considered gestational surrogacy. This article briefly examines the Nigerian legal situation regarding surrogacy and proposes the creation of a clear legal framework for surrogacy in Nigeria, while advising on the legal guarantees to be taken by couples who intend to get pregnant in the meantime via surrogacy. 18. Sanni, S, « Legal Approach to Surrogacy In Nigeria, » available at: www.mondaq.com/nigeria/family-law/840674/legal-approach-to-surrogacy-in-nigeria, accessed June 27, 2022. Surrogacy is usually based on the agreement that the child is handed over to the commissioning parents after birth and can be divided into two types: traditional surrogacy and surrogacy. Traditional surrogacy is a pregnancy in which a woman provides her own egg, which is fertilized by artificial insemination, carries the fetus and gives birth to a child for another person.6Here, the surrogate mother contributes genetically to conception and is both the biological mother and the pregnant mother of the child.
On the other hand, gestational surrogacy, also known as host surrogacy, is a pregnancy in which one woman (the genetic mother) provides the egg that is fertilized and another woman (the surrogate) carries the fetus and gives birth to the child.7 In this case, the surrogate mother does not contribute genetically to the conception of the child and, strictly speaking, is the carrier of pregnancy, that is, the mother of pregnancy. Both types of surrogacy are common in Nigeria today, although gestational surrogacy is becoming increasingly popular due to legal challenges such as the identity of the legal mother, which often occur in traditional surrogacy.8 Before entering into a surrogacy contract, There should be a consultation session with the surrogate and intended parents, during which all parties are informed of their rights and obligations. become. A surrogate mother has the right to be aware of the restrictive conditions that can accompany pregnancy by abstaining from certain habits such as drinking and smoking. She has the right to be aware of possible physical, emotional and hormonal changes that may occur during pregnancy. 133 In general, there are different forms and types of surrogacy, but science groups them all under two (2) key types of surrogacy; Gestational surrogacy and traditional surrogacy. According to Olusesan Ayodeji Makind et al: « For gestational surrogacy, the surrogate mother is implanted with an embryo fertilized in vitro by parents or donors, while in genetic surrogacy, the surrogate mother also contributes to the egg (Field, 2014). For some surrogacy classes, neither the sperm nor the egg are genetically related to the commissioning couple or surrogate mother (Field, 2014). « There is no defined position on the applicability of a surrogacy contract in Nigeria. Although they are based on simple contractual terms, the concern is whether these contracts are enforceable in Nigerian courts. The basic contractual element is offer, acceptance and consideration of value.
The arguments against the applicability of the surrogacy contract have a moral basis. In addition, there is the issue of the tendency of these contracts to be used to exploit vulnerable people, who are usually surrogate mothers. The applicability of surrogacy contracts seems to change the human narrative that is at the heart of the commercialization of surrogacy. Article 10 of the National Health Act provides as follows: However, a big question is whether surrogacy contracts can be enforced in our national courts, on the basis of moral and public policy reasons. However, it has been argued that while the point of view of morality and public order may represent an opposing view on the enforcement of surrogacy contracts; This does not change the fact that surrogacy contracts are legally enforceable agreements.19 Thus, in the event of a botched surrogacy agreement, the parties can take legal action. In short, surrogacy arrangements are likely to be enforced in our national courts if they are subject to judicial review. Based on the provisions of the National Health Act, the entire surrogacy process is illegal, so a surrogacy contract cannot be said to be enforceable, as it attempts to do what has been clearly prohibited by the relevant legislation of the National Health Act. While the law remains the legal instrument on which the legality of surrogacy contracts is based, a bill is pending before the National Assembly. If the Bill is passed, a registry of clinics and banks for assisted reproductive technologies in Nigeria will be established. The registry is responsible for formulating guidelines for the regulation of assisted reproductive technologies such as surrogacy. The bill states that surrogacy should not be considered for any commissioning mother capable of carrying a pregnancy to term, so a commissioning mother must submit a medical report to certify her inability to carry a pregnancy to term. The law limits who can enter into a surrogacy contract to infertile couples.
This appears to be due to the type of long-abandoned surrogacy arrangement that prevailed in pre-colonial Nigeria, where the raison d`être was to pursue a family legacy.