Surrogacy is the arrangement by which a woman (the surrogate) carries and gives birth to a child for another person or couple (the intended parents). In Nigeria, surrogacy is increasingly practiced but remains largely unregulated at the national level. This creates significant legal uncertainty for all parties involved.
The Regulatory Vacuum
Nigeria has no specific legislation governing surrogacy. There is no Assisted Reproductive Technology Act. The legal framework governing surrogacy is pieced together from general principles of contract law, family law, the Child Rights Act 2003, and the constitutional provisions on the rights of children.
Types of Surrogacy
In gestational surrogacy, the surrogate carries an embryo created using the egg and sperm of the intended parents (or donors). The surrogate has no genetic connection to the child. In traditional surrogacy, the surrogate provides both the womb and the egg. The child is genetically related to the surrogate. Traditional surrogacy is more legally complex because of this genetic connection.
Enforceability of Surrogacy Agreements
The enforceability of surrogacy agreements in Nigeria is uncertain. Courts have not definitively ruled on whether surrogacy agreements are enforceable as a matter of public policy. The presumption under Nigerian law is that the woman who gives birth to a child is the legal mother. This means that intended parents may need to obtain a court order to establish their legal parentage before the surrogate surrenders the child.
The Role of the Child Rights Act
The Child Rights Act 2003 establishes that the best interests of the child are paramount in all decisions concerning children. If a dispute arises between the surrogate and the intended parents after birth, a court will determine the matter based on the best interests of the child, not solely on the terms of the surrogacy agreement.
Key Risks for Intended Parents
Intended parents face several significant risks: the surrogate may refuse to surrender the child after birth; the surrogate may claim parental rights particularly in traditional surrogacy arrangements; medical complications may arise without clear allocation of financial responsibility; and intended parents may not be recognised as legal parents without a court order.
Drafting a Surrogacy Agreement
While the enforceability of surrogacy agreements is uncertain, having a carefully drafted agreement in place is better than having no agreement at all. A surrogacy agreement should address: the rights and responsibilities of each party during the pregnancy, financial arrangements including medical expenses, the process for surrendering the child after birth, the intended approach to legal parentage, and dispute resolution mechanisms.
Conclusion
Surrogacy in Nigeria operates in a legal grey area. Parties entering surrogacy arrangements should do so with professional legal advice, a carefully drafted agreement, and a clear understanding of the limitations of what that agreement can achieve in the current legislative environment.
This article is for general information only and does not constitute legal advice. For advice on surrogacy agreements, contact Marturion Legal.