By Chinyere Nwachukwu
Surrogacy, an arrangement whereby a woman gets pregnant and gives birth on behalf of another person or couple who will become the child’s legal parents, is emerging as a family option across countries.
In Nigeria and many other countries, people pursue surrogacy due to a variety of reasons such as infertility and dangers or undesirable factors of pregnancy.
Analysts are convinced that the arrangement is changing the journey of parenthood for many, providing hopes of family building for couples.
They, however, note that surrogacy is highly controversial, with only 12 countries legalising it.
They also note that a surrogacy relationship or contract involves the person who carries the pregnancy and gives birth and the person or persons who take custody of the child after birth.
“The person giving birth is the gestational carrier, sometimes referred to as the birth mother, surrogate mother or surrogate.
“Those taking custody are called the commissioning or intended parents,” a journalist, Mrs Obiageli Okwara, explains.
Okwara observes that there are legal implications of surrogacy in Nigeria and other places.
According to her, as helpful as surrogacy can be, there is the need for parties to back up their contractual agreements with legal child adoption procedures to avoid pitfalls and reduce the controversies surrounding it.
Mr Dania Abdullahi, a Senior Advocate of Nigeria and Founder of a budding platform known as the Surrogacy and Adoption Network, admits that surrogacy is a new area in Nigeria’s jurisprudence.
According to him, surrogacy is a contract like conventional contractual relationships that exist between parties.
He strongly believes that such an arrangement can be concretised with legal frameworks to further safeguard interests.
The lawyer is dissatisfied that there is no legal framework on surrogacy in Nigeria now.
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He believes that it has become imperative to have such since surrogacy is gradually gaining ground in the country, requiring regulation.
“Surrogacy contracts are enforceable, provided the parties meet all contractual requirements, such as being of age, having capacity to contract, furnishing consideration, and not being repugnant to natural justice, among others.
“I advise that once parties are through with the contract, they must speedily follow up with a proper adoption procedure.
“This is because in cases of any breach of contract, the concerned party could lose paternity of the child.”
The lawyer emphasises that it is better and safer to tidy up surrogacy arrangements with a child adoption procedure.
Mr Ademola Owolabi, a partner at Ademola Adetokunbo & Co. Chambers, Lagos, also says Nigeria lacks specific surrogacy laws.
He argues that applicable legal recourse will, therefore, fall under general contract laws of various states.
According to Owolabi, while medical experts or fertility specialists oversee the medical procedures regarding surrogacy, it is important for lawyers to be involved in drafting the legal terms of surrogacy agreements.
Owolabi also says it is important to counsel parties involved in surrogacy, emphasising that such support is necessary to prepare the parties for the emotional and legal realities of surrogacy.
“Ethically, surrogacy does not raise serious concerns since sperm and eggs are not considered children.
“It does not violate Section 30 of the Child Rights Act, which prohibits buying and selling of children.
“The surrogate’s role is limited to carrying the pregnancy under medical supervision, with no parental rights over the child.
“Her rights are strictly defined by the contractual agreement with the intended parents,” Owolabi explains.
He, however, argues that a legal framework will be necessary to address emerging issues surrounding surrogacy.
The lawyer is convinced that government’s involvement will promote standards, safeguard health and support post-surrogacy development.
Mr Spurgeon Ataene, a Commercial Law Consultant, also notes that there are no clear legal provisions on surrogacy in Nigeria.
The lawyer says surrogacy is regulated by the law of contract.
“There is not well laid out legislation yet on this area, but the law of contract comes handy; the legal parents and the surrogate mother must enter a valid and enforceable contract, which must pass the test of validity.
“The persons concerned must agree to enter such a contract without coercion.
“There must be the intention to create a legal relationship between the parties, and they must be adults of sound minds.
“All these must be in tandem with public policy and must not be oppressive and obnoxious,” he adds.
Ataene urges that parties to a surrogacy contract must be bound by its letters, adding that a party should be sued for breach of the contract like in any conventional contract.
Ataene is convinced that there is the need for a law to streamline operations of surrogacy in Nigeria.
He suggests that the Federal Government should, through an executive bill, proscribe or adopt surrogacy, to give impetus to its practitioners.
Mr Ogedi Ogu, also a lawyer, is dissatisfied that as popular as surrogacy tends to be, it lacks a comprehensive regulatory legal framework in Nigeria.
Ogu, the Country Director of the Advocacy for Justice and Accountability, says the closest attempt at having such a legal framework was in 2012.
“That year was when a bill for the establishment of a Nigerian Assisted Reproduction Authority was presented before the National Assembly,” he recalls.
According to him, the bill, however, failed to garner the support of most of the lawmakers.
“The National Health Act of 2014, though addressed aspects of surrogacy to some extent, remains insufficient and fails to cover the vital challenges confronting the practice of surrogacy,” he argues.
He identifies some of issues confronting surrogacy to include custody of children and parental rights of all parties to the contract.
Ogu says Nigeria appears a safe haven for surrogacy tourism, attributing same to lack of a legal framework guiding surrogacy in the country.
He urges enactment of a comprehensive law to regulate surrogacy in Nigeria.
Analysts urge effective regulation of surrogacy in Nigeria to make it safer and fairer, protect women and preserve dignity, protect rights, guard against abuse and balance hope of family building beyond boundaries with ethics.
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