Surrogacy in Nigeria: Legal Void, Cultural Complexities, and Emerging Discussions
By Safiya Hamza
Introduction
Surrogacy, the practice where a woman carries a child for another individual or couple, has gained attention and sparked discussions in Nigeria in recent years. Unlike many countries with established legal frameworks, Nigeria currently lacks specific legislation addressing surrogacy. This absence of regulation presents challenges and uncertainties for those involved, including intended parents, surrogate mothers, and medical professionals.Surrogacy exists in Nigeria without specific legal recognition or regulation. While it is not expressly prohibited by law, neither is it legally acknowledged.
The Assisted Reproductive Technology (ART) Bill of 2016, was the closest attempt made by the Nigerian government to regulate assisted reproduction in Nigeria. However, the said bill was never passed into law leaving surrogacy largely unregulated in Nigeria.
Regional Disparities: The Case of Lagos State
While surrogacy lacks a national legal framework, Lagos State stands out for its efforts to address the issue. In 2019, Lagos State implemented guidelines on assisted reproductive technology, providing a regulatory framework specifically for surrogacy within the state. This initiative represents a notable step towards legal recognition and regulation of surrogacy at the subnational level, although it highlights the broader absence of uniformity in legal approaches across Nigeria.
The Contention that Surrogacy is Prohibited under the Child Rights Act (2003)
Section 30(1) of the Child Rights Act (2003) provides this:
… (1) No person shall buy, sell, hire, let on hire, dispose of, or obtain possession of or otherwise deal in a child.
The above provision has become a point of reference and contention with speculations that the provision prohibits any act of surrogacy. It is important to note that, surrogacy typically involves a contractual arrangement between consenting adults and does not entail the buying or selling of a child, as the child is not considered a commodity but rather the result of a reproductive process. The surrogate mother is not selling the child but rather providing a service by carrying and delivering the child for the intended parents.
Furthermore, in legitimate surrogacy arrangements, the surrogate retains her rights to autonomy and decision-making throughout the pregnancy. Once the child is born, legal procedures are typically followed to establish the parental rights of the intended parents, ensuring that the child’s best interests are protected.
So, while there may be concerns about exploitation or unethical practices in some instances of surrogacy, the fundamental concept of surrogacy itself does not in any way align with the provision of Section 30(1) of the Child Rights Act (2003) hence it should not be wrongly quoted as a prohibition of surrogacy.
Conclusion: Towards Legal Recognition and Protection
In conclusion, the legal framework of surrogacy in Nigeria is characterized by ambiguity as there is no clear provision. While surrogacy is not explicitly prohibited, its legal status remains uncertain, with no comprehensive legislation to govern the practice.
Moving forward, there is a pressing need for legislative action to establish clear and comprehensive regulations that address the complexities of surrogacy while upholding ethical standards and protecting the rights of surrogates, intended parents, and children. This should also entail an amendment of the Child’s Rights Act, which has not been amended since it was passed into law in 2003, which is over 20 years ago. Issues relating to children are dynamic and hence legislation pertaining to children must be amended over time to ensure that it aligns with new developments as they arise.
Finally, Legal recognition and regulation of surrogacy are essential steps towards ensuring transparency, accountability, and the well-being of all individuals involved in assisted reproduction in Nigeria.
Source of Image: https://sabilaw.org/
