SURROGACY IN NIGERIA
The pressure to have children is so much on Nigerian couples who cannot biologically have their own Children due to infertility resulting from; decreased sperm count or sperm motility on the part of the man or blockage of fallopian tubes, ovulation disorder, genetic disorder on the woman. Parents, relatives, friends, and the community at large put so much pressure on the couple, that barely one year after marriage the couple is already questioning their inability to have a child, some men even go as far as impregnating a woman before marriage to avoid facing the stigma of not having children of their own. These gave rise to Assisted Reproductive Technology (ART) which is through either Invitro fertilization or invivo fertilization that helps couples to achieve pregnancy and resolve issues of infertility, it also helps to bring about completeness and fulfillment in any marriage through the help of surrogacy.
SURROGACY
Surrogacy is the practice where a woman becomes pregnant for a parent or couple who cannot carry a pregnancy successfully on their own. In surrogacy, the surrogate mother becomes pregnant for an intending parent and carries the pregnancy till full term and afterward relinquishes all the parental rights she may have upon the birth of the child to the intending parents.
TYPES OF SURROGACY
There are two types of surrogacy namely;
Gestational surrogacy involves implanting an embryo produced by the intending parent by invitro fertilization(a procedure an egg is fertilized outside a woman’s body and then inserted inside her body) to the uterus of the surrogate that way the surrogate mother is not genetically related to the child.
Traditional surrogacy involves the surrogate mother contributing an egg and the intending father’s semen will be injected in her, this process is called artificial insemination. The surrogate mother is genetically related to the child.
BENEFITS OF SURROGACY
- It helps couples who are not able to achieve pregnancy on their own.
- It brings about completeness in marriage.
- It restores joy in marriage.
RISK OF SURROGACY
- There are multiple problems associated with surrogacy; If it is done through invitro fertilization it is physically and financially stressful for couples because the procedure is usually expensive and is usually not successful in the first instance, It can lead to birth defects, hormonal imbalance, low birth weight in children,
- The surrogate mother might claim that she agreed to be a surrogate under duress and want to claim ownership of the child.
- Some surrogate mothers might want to opt-out during the period of pregnancy.
ENFORCEABILITY OF SURROGACY.
Surrogacy agreements in Nigeria are based on contract (a contract is an agreement between two or more parties that creates a reciprocal legal obligation to do a particular thing). There are five elements that constitute a valid contract: offer, acceptance, consideration, intention to create a legal relationship and capacity to contract. Generally, if the conditions necessary for the formation are fulfilled by the parties to that it becomes bound by it.
What amounts to an illegal contract? A contract is illegal if the consideration or promise involved in doing something is illegal and against public policy or if the intention promotes something which is illegal or against public policy.
An illegal contract is a void contract and cannot be a foundation of any legal rights. If Miss A, a surrogate, enters into a contract with Mr. and Mrs. B to bear their child and afterward get monetary consideration but Mr. and Mrs. refuse later after she has given birth to fulfill their own part of the contract, Miss A cannot enforce any legal action against them because surrogacy is not enforceable in any Nigeria court. Nigeria is yet to put laws in place to this effect. Until an appropriate law is put in place in surrogacy contracts to protect all the parties involved, either party will continue to take advantage of the other.
The issue for consideration is whether the Surrogacy contract is enforceable in any Nigeria court or whether any Nigeria law has criminalized Surrogacy.
Section 10(1)(a)(b)(c) of the National Health Act of 2014 prohibits assisted reproductive technology practices, which is done in gestational surrogacy through Invitro fertilization, and sub-section (2) of the above Act renders any of such act an offence punishable with 5 years imprisonment with no option of fine. But has anybody ever been arrested?
Section 30 of the Child Right Act state thus, you can not sell, buy, let on hire, dispose of or obtain or otherwise deal with a child. We all know that any Act that is not Criminal cannot be unlawful, but in surrogacy, there is always a monetary consideration involved. Though the word surrogacy is not mentioned in the Child’s Act if there is monetary consideration involved in surrogacy does that entail buying and selling as stated in the Act?
Another school of thought is of the opinion that a family member or a friend can opt to be a surrogate without any monetary reward. However, the Nigerian Law Reform Commission has recommended that any child born to a woman as a result of artificial insemination or implantation of an embryo in the body of a woman while she is in a marriage must be regarded as a child of the husband.
The Commission further recommends that where a child is born under a surrogacy agreement, the commissioning parents should formally adopt the child, even if the child is the biological child of the commissioning parents. The rationale behind this is to prevent the surrogate mother from returning to claim the child. A Bill for the establishment of a Nigerian Assisted Reproduction Authority which was to help infertile couple was presented before the National Assembly in 2012 and was read for the second time on 2 May 2012. This Bill, however, was not passed into law as it did not enjoy the support of the majority of the legislature.
You can also read more on Business Registration in Nigeria, Disconnection of Electricity Services in Nigeria, Organ Donation in Nigeria, and Marriage in Nigeria.
Reference
Read more on marriage in Nigeria, Business Registration in Nigeria and Connection of electricity services in Nigeria.
