1. Introduction
Surrogacy is a complex assisted reproductive technique that offers hope to individuals and couples who are unable to conceive or carry a pregnancy to term. A surrogate, also called a gestational carrier, agrees to carry and give birth to a child on behalf of another person or couple, known as the intended parent(s). Surrogacy may be altruistic, where the surrogate receives no financial compensation beyond reasonable out-of-pocket expenses, or commercial, where she is paid a fee for her services.
The fertility industry in Nigeria has expanded dramatically. By 2017, Lagos State alone had over twenty documented ART clinics, with numerous undocumented outfits operating without regulatory oversight.[1] Infertility rates among Nigerian couples have been reported as high as twenty-five percent, far exceeding the global prevalence of eight to twelve percent.[2] Against this backdrop, it is clear that surrogacy is being practiced across the country.
Yet the law has not kept pace. Nigeria has no federal or state legislation specifically governing surrogacy or assisted reproductive technology broadly. The question this article squarely addresses is: given the existing statutory framework, is surrogacy, whether altruistic or commercial, legally permissible in Nigeria? Our answer, developed across the sections that follow, is an unambiguous no.
This is not a “grey area.” The grey-area narrative persists because some writers focus on what the statute does not say, that is, the absence of the word “surrogacy” in any federal or state enactment. That approach is jurisprudentially unsound. Nigerian courts interpret statutes by their plain language and operational effect, not by the absence of explicit terminology. When the constituent elements of an act are individually prohibited by statute, the act is illegal regardless of whether the legislature used its name. This is the doctrine of constituent elements, and it is jurisprudentially grounded in Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended),[3] which provides that no person shall be convicted of a criminal offence unless that offence is defined and the penalty prescribed in a written law. Where each constituent step of an act is individually defined as a criminal offence in written law, the act as a whole satisfies the Section 36(12) requirement, regardless of whether the legislature has named it. It is the analytical lens this article applies.
The article is structured as follows. Section 2 defines surrogacy and its types. Section 3 examines the constitutional and international framework. Section 4 provides a detailed statutory analysis anchored in the National Health Act 2014. Section 5 addresses the Lagos State ART Guidelines 2019. Section 6 examines the altruistic/commercial distinction. Section 7 considers the contract law implications. Section 8 surveys the position of the Medical and Dental Council of Nigeria. Section 9 surveys challenges arising from the regulatory vacuum. Section 10 presents key findings from peer-reviewed scholarship. Section 11 addresses the pending Surrogacy (Regulation) Bill 2024. Section 12 compares the Nigerian position with India’s legislative experience. Section 13 concludes.
2. What is Surrogacy? Definitions and Types
Surrogacy is an assisted reproductive technique in which a woman, the surrogate or gestational carrier, agrees to carry and deliver a child for another individual or couple. Upon birth, the child is transferred to the intended parent(s) pursuant to prior agreement. Surrogacy encompasses two primary forms:
Traditional Surrogacy: The surrogate’s own egg is fertilized by sperm from the intended father or a donor, making the surrogate genetically related to the child. This form is less common and raises complex legal issues regarding maternity and parental rights. The Biblical account of Abraham and Hagar provides perhaps the most ancient illustration of this arrangement.
Gestational Surrogacy: An embryo created via in vitro fertilisation (IVF) using gametes from the intended parents or donors is transferred into the surrogate’s uterus. The surrogate has no genetic link to the child. This is the form predominantly practiced in Nigerian fertility clinics.
Understanding Gametes
Central to the legal analysis in this article is the concept of gametes. In basic terms, gametes are the reproductive cells of the human body. In females, the gamete is the egg (oocyte); in males, it is the sperm. Each gamete carries half the normal number of chromosomes for the species. When a sperm fertilizes an egg, they fuse to form a zygote, the first cell of the new organism, which carries a full complement of genetic material from both parents. In vitro fertilisation, which is the clinical foundation of gestational surrogacy, necessarily involves the retrieval, handling, fertilisation, culture, and transfer of these gametes and the resulting embryos.
This biological reality, that gestational surrogacy is fundamentally a process of gamete and embryo manipulation, is the pivot on which the National Health Act 2014 analysis below turns.
3. Constitutional and International Framework
The 1999 Constitution of the Federal Republic of Nigeria does not explicitly mention surrogacy. However, a cluster of provisions is relevant to any discussion of reproductive rights. Section 37 guarantees the right to private and family life.[4] Sections 34(1) and 35(1) protect human dignity and personal liberty respectively.[5] Section 17(1)(d) directs the State to ensure adequate medical and health facilities for all persons, and Section 17(1)(h) encourages the evolution and promotion of family life.[6]
Some writers have sought to construct from these provisions a constitutional right to surrogacy. While it is true that these provisions protect reproductive autonomy and cannot be read as prohibiting surrogacy in principle, they are directory provisions falling under the Fundamental Objectives and Directive Principles of State Policy in Chapter II of the Constitution. They are non-justiciable: they do not confer enforceable individual rights (see Okogie v. Attorney General of Lagos State [1981] 2 NCLR 350[7]) and they certainly cannot override specific statutory prohibitions enacted by the National Assembly.
At the international level, Nigeria has ratified the African Charter on Human and Peoples’ Rights (1981),[8] the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),[9] and the United Nations Convention on the Rights of the Child (CRC).[10] These instruments protect reproductive rights and the best interests of the child. They do not, however, mandate states to legalize surrogacy, and they do not displace domestic statutory prohibitions.
The constitutional provisions and international obligations therefore provide no safe harbour for surrogacy against the statutory prohibitions examined in the next section.
4. Statutory Framework: The Illegality of Surrogacy Under Existing Federal Law
The most consequential finding of this article is this: even relying on the National Health Act 2014 alone, without resort to any other statute, surrogacy is not legally practicable in Nigeria. The Act erects insurmountable barriers at every stage of the clinical process. The additional statutes examined below compound and reinforce this conclusion.
4.1 The National Health Act 2014: The Primary Prohibition
The National Health Act 2014 provides the principal framework for the regulation, development, and management of the national health system. Its long title describes it as an Act ‘to provide a framework for the regulation, development and management of a national Health System and set standards for rendering health Services in the Federation.’ It is the paramount health legislation in Nigeria.
4.1.1 Section 50(1): The Absolute Gamete Manipulation Prohibition
Section 50 of the Act provides as follows:[11]
50.(1) A person shall not (a) manipulate any genetic material, including genetic material of human gametes, zygotes or embryos; or (b) engage in any activity including nuclear transfer or embryo splitting for the purpose of the cloning of a human being; (c) import or export human zygotes or embryos. (2) A person who contravenes or fails to comply with the provision of this section commits an offence and is liable on conviction to imprisonment for a minimum of five years with no option of fine.
Section 50(1) enacts three distinct and independent prohibitions and this structure is instructive to the entire surrogacy debate.
Subsection (a) is a freestanding prohibition on the manipulation of any genetic material, expressly including genetic material of human gametes, zygotes, and embryos. It contains no qualifying purpose and no exception. It is unconditional on its face. Gestational surrogacy necessarily requires: egg retrieval from the intended mother or a donor; sperm collection and preparation; in vitro fertilisation of egg with sperm; embryo culture in a laboratory environment; and embryo transfer into the surrogate’s uterus. Each of these steps constitutes manipulation of genetic material of human gametes, zygotes, or embryos within the plain and unqualified meaning of subsection (a). IVF for surrogacy is therefore prohibited by Section 50(1)(a) without remainder.
Subsection (b) separately and additionally prohibits activities including nuclear transfer and embryo splitting, undertaken for the purpose of cloning a human being. Subsection (c) independently prohibits the import and export of human zygotes or embryos.
The structural separation of subsections (a) and (b) is critical to answering the central counterargument against this article’s thesis. Some commentators contend that Section 50 is concerned only with reproductive cloning and does not touch ordinary IVF. That argument is structurally impossible. If subsection (a) were already confined to cloning-related manipulation, subsection (b) would be entirely redundant. The separate enumeration of these provisions is conclusive proof that they address distinct conduct: subsection (a) prohibits gamete manipulation generally while subsection (b) prohibits cloning specifically.
The word “including” in subsection (a), that is, “including genetic material of human gametes, zygotes or embryos,” is expansive, not restrictive. It forecloses one specific counterargument: that the prohibition is limited to a particular purpose, such as cloning or genetic modification. The categories it introduces, namely gametes, zygotes, and embryos, are illustrative of the genetic material caught by the prohibition; they do not exhaust its scope.
Any surrogacy arrangement conducted through a registered medical facility in Nigeria is, in every material respect, IVF-dependent: the surrogate does not conceive by natural means but receives an embryo created outside the body from the gametes of the commissioning parents or donors. IVF, being the process by which gametes are fertilized outside the human body and the resulting embryo is subsequently transferred to a uterus for gestation, falls squarely within the prohibition in subsection (a), whether the procedure is undertaken for the patient’s own reproductive purposes or in furtherance of a surrogacy arrangement. This analysis proceeds on a strict reading of the statutory text, subject to purposive qualification as discussed below. There is accordingly no need to engage subsection (b).
That conclusion, however, immediately exposes a broader difficulty. Subsection (a), on its plain terms, is not confined to surrogacy-linked procedures: it extends to IVF generally, including procedures in which the embryo is transferred to the patient herself for her own fertility treatment. IVF is simultaneously a recognized and widely practiced clinical service in Nigeria, performed by registered medical practitioners under the professional oversight of the Medical and Dental Council of Nigeria. The resolution of that difficulty lies in purposive construction.
In Bronik Motors Ltd v Wema Bank Ltd (1983) 6 SC 158,[12] the Supreme Court affirmed that a statute must be interpreted to give effect to the legislative purpose and to avoid a result that the legislature could not have intended. An interpretation of subsection (a) that renders every licensed IVF clinic in Nigeria a criminal enterprise, and the Medical and Dental Council of Nigeria the regulator of an unlawful professional practice, is precisely the kind of absurdity that purposive construction exists to prevent. The mischief that Section 50(1)(a) was designed to address is unsupervised and exploitative gamete manipulation outside any clinical or regulatory framework. Supervised IVF for a patient’s own fertility treatment, performed by a registered medical practitioner subject to the professional obligations imposed by the Medical and Dental Council of Nigeria under the Medical and Dental Practitioners Act and the MDCN Code of Medical Ethics 2008, is not within that mischief. It is carried out under the oversight of a federal regulatory body within a professional framework that the MDCN has never prohibited.
That carve-out, however, is bounded by the federal regulatory endorsement that creates it. The MDCN Code of Medical Ethics expressly acknowledges that the statutes needed to govern surrogacy, gamete donation, and related practices are yet to be enacted. There is accordingly no federal regulatory endorsement for surrogacy-linked gamete manipulation equivalent to that which exists for supervised IVF in fertility treatment. The purposive construction that preserves clinical IVF for a patient’s own treatment cannot be extended to surrogacy, because the federal regulatory endorsement on which that construction depends does not exist in that context. Within its purposively construed scope, the prohibition is unqualified. Surrogacy-linked gamete manipulation has no regulatory endorsement to place it outside that scope, and the clinical process therefore triggers the prohibition without remainder. Whether the surrogate is paid or not is irrelevant: the IVF steps are identical in either case, and it is those steps, not the payment, that Section 50(1)(a) prohibits. This provision alone is sufficient to render surrogacy unlawful in Nigeria, without resort to any other statute.
The penalty for contravention is imprisonment for a minimum of five years with no option of fine, one of the most severe criminal penalties in Nigerian health legislation, signaling the legislature’s intent to treat this prohibition as a matter of the highest gravity.
Subsection (c) carries an additional implication that has received little attention. The prohibition on importing or exporting human zygotes or embryos directly affects cross-border surrogacy arrangements, which are increasingly pursued by Nigerian intended parents who commission embryo creation abroad for transfer to a surrogate in Nigeria, or who create embryos in Nigeria for transfer abroad. Such arrangements are independently criminal under Section 50(1)(c) regardless of whether any other element of the surrogacy process is unlawful.
4.1.2 Sections 13 and 14: Certificate of Need and Certificate of Standards
Sections 13 and 14 of the Act prohibit any person from establishing or using a health establishment to provide any health service or use any health technology without a Certificate of Need and a Certificate of Standards respectively, each issued by the Minister of Health.[13] IVF and gestational surrogacy are health services and health technologies within the ordinary and natural meaning of those terms. There is no publicly identifiable instance of any Certificate of Need or Certificate of Standards having been issued in Nigeria specifically in respect of surrogacy as a distinct category of medical service. Clinics providing surrogacy services are therefore operating without the mandatory ministerial authorization required by the Act.
Operating a health establishment without the requisite certificates constitutes a criminal offence attracting a fine of not less than N500,000 or imprisonment for two years or both.[14] This certification gap applies with equal force to altruistic and commercial surrogacy arrangements. There is no exception for clinical procedures that happen to be provided without charge.
4.1.3 Section 48: Prohibition on Commercial Trade in Biological Material
Section 48 of the Act governs the removal of tissue, blood, and blood products from the body of a living person. Section 48(2) provides that tissue, blood, or blood products shall not be removed from the body of another living person for the purpose of merchandise, sale, or commercial purposes.[15] Gametes, that is, eggs and sperm, are biological material produced by the human body. Their commercial extraction from donors for surrogacy purposes engages the prohibition in Section 48(2).
Commercial surrogacy arrangements typically involve compensation to egg donors and surrogate carriers that extends beyond mere expense reimbursement. To the extent that payment is made for the provision of gametes or reproductive services, Section 48(2) is engaged. The argument that altruistic surrogacy escapes Section 48(2) because no gametes are sold has some merit at the Section 48(2) level, but it is immaterial to the Section 50(1)(a) analysis, which is not triggered by commercialization at all.
4.1.4 Section 24: Mandatory Display of Health Services
Section 24 of the Act requires every health establishment to display, in a conspicuous place accessible to patients, a comprehensive list of the health services it provides together with the rights and duties of users of those services.[16] This transparency obligation carries a direct implication for surrogacy.
No Nigerian fertility clinic holds lawful authority to advertise or offer surrogacy as an approved service. That position follows from two independent grounds, each sufficient on its own.
The first is procedural. Section 24 requires that a health establishment operate only within the scope of services certified by the relevant authority. While fertility clinics in Lagos State operate under licences issued by the Health Facility Monitoring and Accreditation Agency, there is no publicly identifiable instance of any certificate recognizing surrogacy as a distinct, approved clinical service. The Lagos ART Practice Regulations and Guidelines 2019, the only regulatory instrument addressing fertility practice at the state level,[17] does not provide a licensing framework for surrogacy as a standalone service. The absence of surrogacy from any certified service schedule is therefore not a mere regulatory omission; it reflects the current legal structure within which ART practice operates. A clinic that presents surrogacy as part of its offered services risks misrepresenting its certified scope of practice or operating beyond it.
The second is substantive. Section 50(1)(a) of the Act prohibits the manipulation of genetic material of human gametes, zygotes, and embryos.[18] On a strict reading, that prohibition extends to the core clinical procedure on which every gestational surrogacy arrangement depends. If that construction is correct, a clinic cannot claim lawful authority to offer a service whose underlying clinical steps are themselves proscribed by federal statute.
These two grounds are analytically distinct. Section 24 operates from the procedural direction: the service has not been certified within any identifiable regulatory framework. Section 50(1)(a) operates from the substantive direction: the clinical process underpinning the service may itself be unlawful. They arrive at the same conclusion by different routes, and together they significantly narrow the legal space within which a clinic might seek to justify the offering or promotion of surrogacy services. The professional dimension of this conclusion is reinforced by Part F of the MDCN Code of Medical Ethics 2008 (Self Advertisement and Related Offences), specifically sections 54.0 and 56.0,[19] which regulate professional advertising and require that any communication to the public be consistent with professional dignity and ethical restraint. A clinic that publicly promotes surrogacy as an available service is advertising a procedure that the Lagos ART Guidelines decline to recognize as lawful, and its promotion in that manner engages the Part F constraints independently of the statutory prohibition.
4.1.5 The NHA Counterarguments Considered
The position advanced above has not gone without challenge. A body of commentary, adopting what may be styled the “no specific prohibition” argument, contends that Section 50 does not render surrogacy unlawful because the word “surrogacy” does not appear in the provision. Alongside this textual argument, commentators point to the decision of the Oyo State High Court in AB v EF, Suit No. M/111/2021 (Unreported), as judicial authority for the proposition that gestational surrogacy agreements are valid and enforceable in Nigeria. Neither argument withstands proper legal scrutiny.
The No Specific Prohibition Argument
The contention that Section 50(1)(a) does not prohibit surrogacy because the provision does not use the word “surrogacy” conflates the subject matter of a prohibition with the label under which a regulated activity is commercially organized. A provision prohibiting conduct operates by describing the conduct, not by listing every possible arrangement within which that conduct might be embedded. Section 50(1)(a) prohibits the manipulation of genetic material, expressly including gametes, zygotes, and embryos. It is not a provision about surrogacy in the abstract. It is a provision about a specific biological process, namely IVF, and as demonstrated above, surrogacy conducted through a medical facility is IVF-dependent in every material respect. The absence of the word “surrogacy” in the provision is no more a defence than the absence of the word “bomb” would be in a provision prohibiting the manufacture of explosive devices.
The associated invocation of the expressio unius est exclusio alterius principle does not assist. That principle provides that the express mention of specific things within a category excludes other things of the same category. It is a principle of construction within a provision’s enumerated scope, not a rule that narrows the application of a broadly stated prohibition by reference to what the drafter did not expressly name. Moreover, on the actual text, the principle operates in the opposite direction. Section 50(1)(a) uses the word “including” before listing gametes, zygotes, and embryos. “Including” is a word of expansion. It signals that the listed items are illustrative of the prohibition’s reach, not exhaustive of it. The expressio unius argument, properly directed at the statutory language, reinforces rather than undermines the breadth of the prohibition.
The further submission that “no judicial interpretation has been given” to Section 50(1)(a) and that the provision therefore cannot apply to surrogacy is a non sequitur. A statutory prohibition does not await judicial activation before it takes effect. It operates from the date of commencement of the Act. The absence of a decided case applying Section 50(1)(a) to surrogacy reflects the recency of judicial engagement with this question, not the dormancy of the provision itself. On the commentators’ own logic, every penal provision in Nigerian law would be unenforceable until a conviction has been recorded under it, which cannot be the law.
The Unreported Decision of the Oyo State High Court in Ab V Ef, Suit No. M/111/2021
In 2019, a German-Nigerian couple who had been declared medically unfit to carry a pregnancy engaged the services of a surrogate at a fertility clinic in Lagos. A gestational surrogacy agreement was duly executed, and the procedure produced three children, one of whom died at birth. The two surviving children were handed over to the intended mother and DNA testing confirmed paternity. When the couple sought German visas for the children, the German Embassy refused on grounds relating to the validity of the surrogacy agreement and the identity of the surrogate mother. An Originating Summons was consequently filed before the Oyo State High Court, Coram Bolaji J (as she then was), seeking a declaration that the gestational surrogacy agreement was valid and subsisting, and a parenthood order declaring the couple as the biological parents of the surviving children. The court called for a proper trial, conducted a chambers interview with the children, and ultimately declared the agreement valid and enforceable. A parenthood order was granted.
The decision has been cited by some authors as authority for the proposition that gestational surrogacy is lawful in Nigeria. That characterization requires careful examination at four levels.
First, the court in the said case relied principally on the United Kingdom Human Fertilisation and Embryology Act 2008 and foreign decisions on the subject, in view of the overall best interests of the children. The UK HFE Act 2008 is a foreign statute. It was enacted by the UK Parliament to create, from scratch, the legal framework within which IVF and surrogacy-related procedures could be authorized in England and Wales. The very fact that the UK Parliament needed primary legislation to permit these practices is instructive: it confirms that without such enabling legislation, the underlying procedures would not be lawful. Transposing the UK Act as persuasive authority into a Nigerian dispute, while leaving Section 50(1)(a) of the National Health Act 2014 unaddressed, is to import a permissive framework from a jurisdiction that specifically enacted it, and to treat that framework as displacing a Nigerian prohibition that the court does not appear to have engaged with directly.
Second, the reliance on the “law abhors a vacuum” principle compounds this view. That principle applies where no legal provision exists to address a situation before the court. Here, Section 50(1)(a) is precisely such a provision. The court appears to have treated the absence of surrogacy-specific legislation as a regulatory vacuum. That characterization is, with respect, incorrect. The vacuum in Nigerian law is not the absence of any provision relevant to surrogacy: it is the absence of a permissive legislative framework equivalent to the UK HFE Act 2008. Those are fundamentally different things. The former would justify resort to first principles. The latter requires the court to apply the existing federal prohibition and note the legislative gap, not to fill that gap with foreign law.
Third, the best interests of the children, which evidently drove the outcome, cannot retroactively cure a transaction that violated a federal prohibition at the point of its performance. The ex turpi causa non oritur actio principle, properly applied, operates at the moment of formation and execution of the surrogacy arrangement, not at the point of subsequent judicial review. The children’s interests arise after the fact of a prohibited process. A court’s humanitarian concern for children already born and living with their intended parents is proper as a matter of compassion. It cannot, however, serve as the doctrinal foundation for a ruling that the agreement that produced them was lawful as against the terms of a federal statute.
Fourth, and most fundamentally, the constitutional hierarchy forecloses the precedential force of this decision on the question of federal law. AB v EF is a High Court ruling of Oyo State. It does not bind any other court of coordinate jurisdiction. It cannot, as a matter of constitutional law, render lawful what the National Assembly has prohibited. Section 4(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that where a federal law and any other law are inconsistent, the federal law prevails and the other law is void to the extent of the inconsistency. The same principle applies with equal force to a state court’s characterization of federal legislation: a state High Court cannot declare valid what the Nationa Assembly has prohibited in a statute. The debate is therefore not resolved by AB v EF. It remains open. The prohibition under Section 50(1)(a) stands as the operative legal position unless and until either a superior court engages directly with its application to surrogacy, or the legislature enacts a permissive framework of the kind that the UK found it necessary to enact. Indeed, the very call for a regulatory framework modelled on the UK HFE Act 2008, advanced by proponents of surrogacy’s legality, is itself a concession: one does not call for enabling legislation to permit what is already lawful. The call for reform tacitly admits that the current position is one of prohibition.
4.2 The Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 (TIPPEA)
TIPPEA criminalizes all forms of human trafficking in Nigeria. Section 13 of the Act defines trafficking broadly to include the recruitment, transportation, transfer, harbouring, or receipt of a person by means of threat, coercion, abduction, fraud, deception, or the giving or receiving of payments or benefits to achieve the consent of a person having control over another, for the purpose of exploitation.[20] Section 82 contains the relevant definitional provisions reinforcing this framework.[21]
Commercial surrogacy engages TIPPEA at multiple points. The financial inducement of a surrogate to carry a child for others can constitute exploitation of her reproductive capacity within the statutory definition. The eventual transfer of the child to the intended parents may, depending on the circumstances, engage the prohibition on receiving a person for the purpose of exploitation. The penalties under TIPPEA are severe: a minimum of two years’ imprisonment and a fine of not less than N250,000 for basic offences, with higher penalties for aggravated conduct.[22]
The distinction between altruistic and commercial surrogacy is most operative here. An altruistic arrangement, properly structured with no financial inducement and no payment beyond documented expenses, may avoid the payment-based elements of the TIPPEA definition. This is the strongest argument for the relative legality of altruistic surrogacy. However, the escape from TIPPEA does not resolve the Section 50(1)(a) National Health Act prohibition. The clinical process remains absolutely prohibited regardless of compensation.
4.3 The Child Rights Act 2003
Section 30 of the Child Rights Act prohibits any person from buying, selling, hiring out, or otherwise dealing in children.[23] This provision directly criminalizes commercial surrogacy arrangements in which the essential quid pro quo is payment in exchange for the transfer of a child. It also targets the baby factories and exploitative surrogacy networks that have proliferated in Nigeria in the absence of any regulatory framework.
Some commentators read Section 30 narrowly, as targeting only outright child trafficking rather than consensual parental transfers effected with genuine reproductive intent. The better view, however, is that any arrangement whose essential feature is the transfer of parental authority over a child in exchange for payment falls within the provision. Section 30 should be read alongside TIPPEA as part of a coherent anti-trafficking and child-protection framework, not as a complete substitute for it.
5. The Lagos State ART Practice Regulations and Guidelines 2019
The Lagos State ART Practice in Lagos State: Regulations and Guidelines was unveiled on 9 May 2019 by the Lagos State Commissioner for Health, Dr. Jide Idris, in collaboration with the Health Facilities Monitoring and Accreditation Agency (HEFAMAA) and the Association for Fertility and Reproductive Health (AFRH).[24] Secondary sources confirm that the document addresses clinic registration and accreditation, personnel standards, informed consent, data retention (minimum ten years), pre-implantation genetic testing, surrogacy arrangements, donor age limits (eggs: 21 to 35 years; sperm: 21 to 40 years), embryo transfer limits (maximum three per cycle), cross-border treatment, cryopreservation, and enforcement sanctions administered by HEFAMAA.[25]
5.1 Legal Effect: Why the Lagos Guidelines Cannot Legalize Surrogacy
The Lagos State ART Guidelines 2019 were issued by the Lagos State Ministry of Health and HEFAMAA pursuant to HEFAMAA’s statutory mandate under the Lagos State Health Sector Reform Law 2006, which confers on HEFAMAA express power to set minimum standards for health facilities within Lagos State. To that extent, and to that extent only, the Guidelines carry the character of subsidiary legislation made pursuant to a valid legislative grant of power within Lagos State’s residual legislative competence over healthcare delivery.
Healthcare delivery in Nigeria is, as a constitutional matter, a residual subject. It appears on neither the Exclusive Legislative List in Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended) nor on the Concurrent Legislative List in Part II. The suggestion, sometimes encountered, that health services fall within the Concurrent Legislative List is incorrect. While health featured on the Concurrent List under the 1979 Constitution, that allocation was not retained in the 1999 constitutional framework. Legislative competence over healthcare delivery accordingly resides with the States, which possess the authority to regulate health facilities within their territories. On that basis, the Health Sector Reform Law 2006 (Lagos State) is a valid exercise of state legislative power.
That residual competence, however, does not extend to the subject matter engaged by Section 50(1)(a) of the National Health Act 2014. The power to define what medical practitioners may or may not do in the course of clinical practice is exercised at the federal level, through bodies established by federal statute such as the Medical and Dental Council of Nigeria. This is not a residual matter open to state regulation: it is a federal exclusive function that the MDCN discharges under the Medical and Dental Practitioners Act. Lagos State has legislative competence to regulate health facilities. It has no competence to prescribe the procedures that practitioners within those facilities may lawfully perform. The ART Guidelines, by laying down conditions under which gamete manipulation may proceed, are a prescription of what licensed medical practitioners may do, a function that lies beyond Lagos State’s constitutional reach.
Section 4(5) of the Constitution operates as a further and independent ground. It renders void, to the extent of any inconsistency, any state law that conflicts with a law validly made by the National Assembly. The National Health Act 2014 has not been challenged in any reported decision and must be treated as a valid federal enactment. Its prohibition in Section 50(1)(a) and the ART Guidelines’ implicit regulatory framework for gamete use are directly inconsistent. The state instrument yields. This is the principle confirmed by the Supreme Court in Attorney-General of Ogun State v Aberuagba [1985] 1 NWLR (Pt 3) 395.
Critically, the Lagos State Guidelines do not even claim to legalize surrogacy. Academic accounts of the Guidelines record the following statement: “Surrogacy is not currently recognized in Nigerian law but is widely practiced.”[26] This is a frank and revealing concession. The Guidelines acknowledge the absence of legal recognition. Administrative guidance that expressly acknowledges the absence of legal recognition cannot simultaneously confer legal authorization. The Lagos Guidelines, at their most generous interpretation, confirm rather than resolve surrogacy’s legally precarious status.
6. Altruistic Versus Commercial Surrogacy: Does the Distinction Matter?
The distinction between altruistic and commercial surrogacy is frequently advanced by advocates of surrogacy reform as a basis for arguing that at least one form of surrogacy exists in a legal space short of outright prohibition. The argument is that commercial surrogacy attracts the full weight of TIPPEA and Child Rights Act prohibitions because payment is involved, while altruistic surrogacy, involving no commercial exchange, escapes these provisions and occupies a lawful or at least legally neutral space.
This argument has surface appeal. It correctly identifies that the TIPPEA definition of trafficking is payment-anchored, and that Section 48 of the National Health Act targets commercial trade in biological material. To that extent, the distinction matters, and this article concedes it.
However, the distinction does not carry the legal weight placed upon it.
First, and most decisively, the gamete manipulation prohibition in Section 50(1)(a) of the National Health Act is not triggered by payment.[27] It is triggered by the act of manipulation itself. The prohibition is absolute and unconditional. Altruistic surrogacy requires IVF. IVF requires the manipulation of gametes, zygotes, and embryos. Section 50(1)(a) prohibits that manipulation in terms that admit of no altruistic exception. Whether the surrogate is paid N1,000,000 or not a single kobo, the IVF process is identical and it is the IVF process that Section 50(1)(a) prohibits.
Second, the certification gap under Sections 13 and 14 cuts across both forms equally.[28] No Certificate of Need and no Certificate of Standards have been issued for surrogacy. This gap does not distinguish between altruistic and commercial arrangements. A clinic providing altruistic surrogacy without the requisite certificates commits the same criminal offence as one providing commercial surrogacy.
Third, the “expenses only” boundary of altruistic surrogacy is undefined in any Nigerian statute. There is no legislative threshold distinguishing permissible expense reimbursement from prohibited commercial compensation. Without legislative definition, altruistic arrangements carry the constant risk of shading into prohibited commercial territory, and no participant can be certain which side of the line they stand on.
Our position is that the altruistic/commercial distinction is relevant to the TIPPEA and Section 48 NHA analysis, but it provides no escape from the absolute prohibition in Section 50(1)(a). Altruistic surrogacy is not legally practicable in Nigeria under the current statutory framework. The position is absolutist, and it is legally justified.
7. The Contract Law Dimension: Ex Turpi Causa Non Oritur Actio
Any surrogacy agreement, whether labelled altruistic or commercial, entered into in Nigeria is an agreement whose purpose and subject matter engage statutory criminal prohibitions. Under the common law principle ex turpi causa non oritur actio, no cause of action arises from a base or illegal cause.[29] A contract whose performance necessarily involves the commission of a criminal act is void and unenforceable as a matter of public policy. This principle is a well-established feature of Nigerian contract law, derived from the received English common law and consistently applied by Nigerian courts in respect of contracts tainted by illegality.
In the surrogacy context, the implications of this principle are severe for every party. An intended parent who pays a surrogate and is subsequently abandoned has no enforceable claim for recovery of sums paid. A surrogate who carries a pregnancy and is not paid has no enforceable claim for compensation. A surrogacy agency that facilitates an arrangement cannot sue for its fees. The child born of the arrangement occupies a legally uncertain status, neither acknowledged by statute nor protected by an enforceable parental rights agreement.
The unenforceability of surrogacy contracts is not an unfortunate incidental consequence of the regulatory vacuum. It is a direct and predictable result of the illegality of the underlying arrangement. It underscores why the reform of surrogacy law in Nigeria is not merely a matter of reproductive rights advocacy. It is an urgent matter of legal protection for the most vulnerable parties to these arrangements: the surrogate, the child, and ultimately the intended parents themselves.
8. The Position of the Medical and Dental Council of Nigeria
The Medical and Dental Council of Nigeria (MDCN) is empowered under the Medical and Dental Practitioners Act[30] to review and publish from time to time a Code of Medical Ethics governing practice in Nigeria. Appendix 7 of the current Code (Assisted Conception and Related Practices),[31] acknowledges the existence of ART practices, including IVF, sperm and egg donation, embryo donation, gestational surrogacy, and full surrogacy, but expressly notes that the necessary statutes to govern these practices “are yet to be enshrined.”
This acknowledgment is significant for the article’s thesis in two respects. First, the Council’s own ethical code does not validate surrogacy as a lawful medical service. It calls for appropriate legislation while advising practitioners to resolve ethical issues in the meantime. The Code therefore confirms rather than contradicts the legislative vacuum. Second, the Council’s specific advice that gamete or embryo donation should be made as a voluntary service and should not be commercialized, and its explicit call for statutory resolution of questions around monetary transactions, constitutes a professional acknowledgment that the existing legal framework does not sanction commercial ART transactions.
The Code’s recognition of surrogacy as a practice that exists in an ethical and legal vacuum further supports the article’s conclusion: the practice proceeds in defiance of, not in compliance with, the existing legal framework.
9. Challenges Arising from the Regulatory Vacuum
The practical consequences of the legal vacuum are severe. They fall across three categories of affected persons.
9.1 Intended Parents
Intended parents face profound uncertainty about the legal status of children born through surrogacy arrangements. Without a statute conferring parental rights on intended parents, birth registration may be contested, passports may be unavailable, and citizenship status may be unresolved. Foreign surrogacy arrangements, increasingly pursued by Nigerians abroad, raise additional cross-border complications, including the Section 50(1)(c) prohibition on importing embryos. Funds paid to surrogacy agencies are unrecoverable if arrangements fail, because the underlying contracts are unenforceable as illegal.
9.2 Surrogates
Surrogates bear significant medical risk in the IVF process and throughout pregnancy without the protection of any statutory framework. There is no prescribed standard of care, no mandated medical insurance, no minimum health and safety standard, and no enforceable right to adequate compensation or expense reimbursement. Coercion and exploitation of economically vulnerable women are documented risks in the complete absence of regulation.
9.3 Children
Children born through surrogacy arrangements have no statutory framework that recognizes them as the legal children of the intended parents. Where donor gametes are involved, establishing genetic parentage may be practically impossible absent mandatory record-keeping. The absence of mandatory data retention obligations, which do not apply because surrogacy is not a lawfully prescribed service, means that information about a child’s origins may be irrecoverably lost.
10. Key Findings
The analysis in this article is supported and enriched by the findings of Obagboye, Ezoke, Akinola and Umar (2025),[32] published in the International Journal of Law, Policy and Social Review, which provides a comparative examination of ART regulatory frameworks in Nigeria and India. The following highlights from that study are presented as a complement to the statutory analysis above.
10.1 The Scale of the Infertility Burden
The World Health Organization recognizes infertility as a global public health concern affecting between 50 and 80 million people worldwide.[33] In Nigeria, infertility rates among couples are reported as high as twenty-five percent. Nigerian gynaecologists report that infertility cases constitute between fifty and seventy percent of their consultations in tertiary health institutions. The Demographic and Health Survey records that approximately four percent of Nigerian women aged thirty and above have never given birth to a child. These figures confirm that the regulatory vacuum identified in this article affects a substantial and growing population.
10.2 What the Lagos Guidelines Prescribe
Obagboye et al. (2025) provides a most detailed secondary-source account of the Lagos ART Guidelines’ substantive provisions currently available in the academic literature.[34] The key ethical restrictions the Guidelines are reported to contain include the following:
• Recipient age: Recipients must not be more than 55 years old.
• Donor age limits: Egg donors must be between 21 and 35 years; sperm donors between 21 and 40 years.
• Anonymity: Sperm donors shall be anonymous.
• Embryo transfer: No more than three embryos to be transferred per cycle; clinics are encouraged to transfer a maximum of two.
• Embryo research: Only leftover or excess embryos may be used for research, with patient consent.
• Animal prohibition: The transfer of a human embryo into an animal, or an animal embryo into a woman, is expressly prohibited.
• Data retention: Laboratory records must be maintained for ten years beyond the final disposition of all specimens, or from the ART cycle date, whichever is later.
• Personnel: Every clinic must have a designated Practice Director, Medical Director, Embryologist, Laboratory Technicians, and Qualified Nurses.
These provisions illustrate the level of specificity that comprehensive ART legislation would need to achieve. Their current administrative status renders them unenforceable as law.
10.3 What India’s ART Act 2021 Resolves
Two provisions of the Assisted Reproductive Technology (Regulation) Act 2021 are of particular relevance to the gaps identified in this article.
Section 22 of the Act mandates a minimum of twelve months’ insurance coverage for the oocyte (egg) donor, to be provided by the commissioning couple at their own expense.[35] No equivalent protection exists within the Lagos State regulatory framework.
Section 31 provides that a child born through ART shall be deemed the biological child of the commissioning couple and entitled to all rights available to a natural child, while donors relinquish all parental rights in respect of any child born from their gametes.[36]
These provisions address, in concrete terms, two of the most consequential risks inherent in assisted reproduction: the protection of donors and the legal status of children. Their absence within the Nigerian framework underscores the extent of the current regulatory vacuum and confirms that the legal uncertainty surrounding children born through surrogacy arrangements in Nigeria is not merely theoretical, but immediate and practical.
10.4 Legislative Recommendations from the Scholarship
Obagboye et al. (2025) concludes with the following recommendations, which align with and extend the legislative pathway proposed in this article:[37]
• Comprehensive ART legislation: Nigeria should enact sector-specific legislation covering all ART procedures, not surrogacy alone, with strict controls on informed consent, gamete donation, embryo research, and prohibitions on cloning and commercialization.
• Regulatory body: A dedicated body should be established with powers to grant, suspend, and revoke licences, prescribe minimum infrastructure requirements, and resolve disputes arising from ART arrangements and practitioner negligence.
• Legal status: The legislation should define clearly the legal status of intended parents and the children born through ART, removing the present uncertainty that this article identifies as one of the most urgent consequences of the regulatory vacuum.
• Categories of entitled persons: The legislation should unambiguously specify which categories of persons may access ART services and the medical prerequisites that must be satisfied.
11. The Surrogacy (Regulation) Bill 2024: A Partial Step in the Right Direction
In October 2024, a Bill for an Act to Establish the Nigeria Surrogacy Regulatory Commission for Monitoring and Supervision of Surrogacy Arrangements in Nigeria, sponsored by Honourable Olamijuwonlo Alao Akala, passed through Second Reading in the House of Representatives.[38] The Bill seeks to establish a dedicated surrogacy regulatory commission, provide for the registration and monitoring of surrogacy agencies, and introduce structured oversight of surrogacy arrangements in Nigeria.
This development is to be welcomed. It signals that the National Assembly has formally recognized the need for dedicated surrogacy legislation and that political will to address the issue exists, at least at the level of Second Reading.
However, two observations are essential.
First, the Bill covers only surrogacy. It does not address the full clinical infrastructure within which surrogacy operates, namely IVF, gamete donation, embryo donation, pre-implantation genetic testing, and cryopreservation. A surrogacy law without an overarching ART regulatory framework is structurally incomplete. Surrogacy cannot be lawfully regulated unless the clinical procedures that make surrogacy possible are also brought within a lawful framework. This mirrors the lesson from India’s legislative process, where the Select Committee recommended a comprehensive ART Act before a standalone Surrogacy Bill could be effectively implemented.
Second, and most critically, a Surrogacy Regulation Bill cannot by itself displace the absolute prohibition in Section 50(1)(a) of the National Health Act 2014.[39] Section 50(1)(a) is the primary obstacle. For surrogacy to become legally practicable, the National Assembly must either amend Section 50(1)(a) to carve out regulated gamete manipulation for licensed ART procedures, or enact a comprehensive ART statute that expressly supersedes Section 50(1)(a) in its application to certified clinical procedures. Unless and until that amendment or supersession is enacted, a Surrogacy Regulation Bill will regulate a practice that remains criminal under the principal health legislation of the federation.
The appropriate legislative pathway is therefore a comprehensive Assisted Reproductive Technology and Surrogacy Act that: amends or carves out from Section 50(1)(a) of the National Health Act to permit regulated gamete manipulation by licensed facilities; establishes a National ART Regulatory Board with enforcement powers; prescribes standards for IVF clinics and ART banks; addresses gamete and embryo donation, cross-border treatment, and the Section 50(1)(c) import/export prohibition; resolves the parental rights and legal status of children born through ART; and establishes mandatory record-keeping and data retention obligations. The Surrogacy (Regulation) Bill 2024 must be understood as a starting point, not an endpoint.
12. Lessons from India: A Comparative Perspective
A comparison with India is instructive. Both countries share significant demographic, socio-cultural, and legal commonalities as former British colonies with mixed common law and statutory systems, high infertility burdens, and rapidly expanding ART industries.
India recognized the need for formal ART oversight as early as 1982 through the Indian Council of Medical Research (ICMR). ICMR Guidelines issued in 2005[40] regulated clinic registration, donor compensation, and the conditions for surrogacy. These guidelines were subsequently translated into legislative proposals that were enacted as the Assisted Reproductive Technology (Regulation) Act 2021[41] and the Surrogacy (Regulation) Act 2021.[42] Nigeria attempted a parallel process during the same period: the IVF Bill 2015 and the ART Regulation Bill 2016 each passed Second Reading in the National Assembly before dying at the end of the 7th Assembly session. India’s proposals survived and became law; Nigeria’s did not.
The Indian ART Act 2021 establishes the National ART and Surrogacy Board, State Boards, and a National Registry.[43] It mandates registration of all clinics and banks, prescribes detailed requirements for informed consent, prohibits the sale of gametes and embryos, restricts embryo research, and guarantees the legal parentage rights of commissioning couples in respect of children born through ART. Crucially, India’s Surrogacy (Regulation) Act 2021 ultimately banned commercial surrogacy entirely, limiting surrogacy to altruistic arrangements involving close relatives.[44] This is a significant data point: even a country with comprehensive, purpose-built ART legislation concluded that commercial surrogacy should be prohibited. Nigeria’s legislative path, if it follows India’s model, would not automatically legalize commercial surrogacy.
India’s journey, from unregulated practice through guidelines and failed Bills to comprehensive statute, took approximately four decades. Nigeria’s parallel Bills in 2015 and 2016 failed at the same committee stage that India’s early proposals survived. The lesson is clear: voluntary guidelines, however well-designed, are insufficient. Only legislation, clear, enforceable, and comprehensive, can provide the framework within which ART, including surrogacy, can be practised safely and lawfully. India also demonstrates the cost of delay: an unregulated surrogacy industry became a site of documented exploitation before legislation intervened.
13. Conclusion
Surrogacy in Nigeria is not a legal grey area. It is illegal.
It is illegal, first and most fundamentally, because Section 50(1)(a) of the National Health Act 2014 imposes an absolute, unqualified prohibition on the manipulation of any genetic material including genetic material of human gametes, zygotes, and embryos. Within its purposively construed scope, the prohibition is unconditional. It admits of no exceptions and no altruistic carve-out. IVF, the clinical foundation of gestational surrogacy, constitutes manipulation of gametes and embryos within the plain terms of the provision. The five-year minimum custodial sentence that attaches to contravention, with no option of fine, confirms the severity with which the legislature regards the prohibition.
It is illegal, second, because no health establishment holds a Certificate of Need or Certificate of Standards authorizing the provision of surrogacy as a health service, as required by Sections 13 and 14 of the Act. Commercial surrogacy is additionally illegal under TIPPEA and the Child Rights Act. Any agreement for surrogacy, whether altruistic or commercial, is void and unenforceable under the principle ex turpi causa non oritur actio.
The Lagos State ART Guidelines 2019 are administrative in character, and they expressly acknowledge that surrogacy is not recognized in Nigerian law, and cannot override the binding prohibitions of federal statute.
The altruistic/commercial distinction is analytically relevant to the TIPPEA and Section 48 NHA analysis, but it provides no escape from Section 50(1)(a). Altruistic surrogacy remains clinically impracticable because its clinical foundation, IVF, is absolutely prohibited.
The path to lawful surrogacy in Nigeria is comprehensive legislation on the subject. The Surrogacy (Regulation) Bill 2024 is an encouraging signal from the legislature, but it is insufficient without a companion amendment to Section 50(1)(a) of the National Health Act and a comprehensive ART regulatory framework. India’s experience, spanning four decades from unregulated practice to statute, teaches both the indispensability of legislation and the human cost of delay.
Even those who resist the illegality finding cannot escape a distinct but equally compelling conclusion: the current framework is legally incoherent. A practice cannot simultaneously be regulated by state administrative guidelines and absolutely prohibited by federal statute. That incoherence, no less than the prohibition itself, demands legislative resolution.
In the meantime, surrogacy, as currently practiced in Nigeria, is unlawful. Intended parents, surrogates, and their advisers must proceed with full awareness of the legal exposure they bear, and with an understanding that the remedy lies not in finding comfort in a grey area that does not exist, but in advocating urgently for the comprehensive legislation that Nigeria’s fertility industry, and the vulnerable persons it serves, so desperately requires.
[1]Obagboye TG, Ezoke SV, Akinola NN and Umar AM, ‘The Regulatory Framework for Assisted Reproductive Technology (ART) in Nigeria: Lessons from India’ (2025) 7(2) International Journal of Law, Policy and Social Review 158, 159.
[2]ibid 158–159.
[3]Constitution of the Federal Republic of Nigeria 1999 (as amended) (CFRN 1999), s 36(12).
[4]CFRN 1999, s 37.
[5]CFRN 1999, ss 34(1), 35(1).
[6]CFRN 1999, ss 17(1)(d), 17(1)(h).
[7]Okogie v Attorney-General of Lagos State [1981] 2 NCLR 350, 359 per Eso JCA.
[8]African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap A9 LFN 2004.
[9]Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 December 1979, 1249 UNTS 13, ratified by Nigeria 13 June 1985 (CEDAW).
[10]United Nations Convention on the Rights of the Child, adopted 20 November 1989, 1577 UNTS 3, ratified by Nigeria 19 April 1991 (CRC).
[11]National Health Act 2014 (NHA 2014), s 50.
[12]Bronik Motors Ltd v Wema Bank Ltd (1983) 6 SC 158, 171.
[13]NHA 2014, ss 13, 14.
[14]NHA 2014, s 14(4).
[15]NHA 2014, s 48(2).
[16]NHA 2014, s 24.
[17]Lagos ART Guidelines 2019 (n 12).
[18]NHA 2014, s 50(1)(a) (n 11).
[19]Medical and Dental Council of Nigeria, Code of Medical Ethics in Nigeria (MDCN 2008), Part F, ss 54.0 and 56.0.
[20]Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 (TIPPEA 2015), s 13.
[21]TIPPEA 2015, s 82.
[22]TIPPEA 2015, s 14(1).
[23]Child Rights Act 2003, s 30.
[24]Lagos ART Guidelines 2019 (n 12). The guidelines were unveiled at the Radisson Blu Hotel, Ikeja, by the Lagos State Commissioner for Health, Dr Jide Idris, in conjunction with HEFAMAA and AFRH.
[25]Obagboye et al (n 1) 160–161.
[26]Lagos ART Guidelines 2019 (n 12), as cited in Obagboye et al (n 1) 161.
[27]NHA 2014, s 50(1)(a) (n 11).
[28]NHA 2014, ss 13, 14 (n 14).
[29]Holman v Johnson (1775) 1 Cowp 341, 343 per Lord Mansfield CJ, as received into Nigerian contract law through the received English common law applicable in Nigeria by virtue of the English Law (Application) Act Cap E10 LFN 2004. See also Sodipo v Lemminkainen OY (1985) 2 NWLR (Pt 8) 547.
[30]Medical and Dental Practitioners Act Cap M8 LFN 2004.
[31]MDCN, Code of Medical Ethics in Nigeria (MDCN 2008), Appendix 7 (Assisted Conception and Related Practices).
[32]Obagboye et al (n 1).
[33]ibid 158.
[34]ibid 160–161, citing Lagos ART Guidelines 2019 (n 12), Part 3.
[35]Assisted Reproductive Technology (Regulation) Act 2021 (India) (Indian ART Act 2021), s 22, as discussed in Obagboye et al (n 1) 162.
[36]Indian ART Act 2021, s 31, as discussed in Obagboye et al (n 1) 162.
[37]Obagboye et al (n 1) 163–164.
[38]Bill for an Act to Establish the Nigeria Surrogacy Regulatory Commission for Monitoring and Supervision of Surrogacy Arrangements in Nigeria, sponsored by Hon Olamijuwonlo Alao Akala, passed Second Reading in the House of Representatives, October 2024 (Surrogacy (Regulation) Bill 2024).
[39]NHA 2014, s 50(1)(a) (n 11).
[40]Indian Council of Medical Research, National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (ICMR 2005).
[41]Assisted Reproductive Technology (Regulation) Act 2021 (India) (Indian ART Act 2021).
[42]Surrogacy (Regulation) Act 2021 (India).
[43]Indian ART Act 2021 (n 42), ss 3–8.
[44]Surrogacy (Regulation) Act 2021 (India) (n 43), s 4.
Article authored by – Gbenga K. Adebisi, Esq, (Managing Partner)
Esther A. Adebiyi, Esq and I.M Ademago, Esq