S.A.F.E® Community Board

Navigating the Complexities of Surrogacy, Protection, and the Child’s Best Interest

The recent revelation of 21 children in the custody of a California child-welfare agency, stemming from an investigation into a Los Angeles-area couple allegedly misleading surrogate mothers, casts a stark light on the urgent global need for robust surrogacy laws and regulations. This distressing case, involving allegations of abuse, deceptive practices, and a multitude of surrogates, underscores the vulnerabilities inherent in unregulated or poorly regulated surrogacy arrangements, impacting not only intended parents and surrogate mothers but, most critically, the children born through these processes.

The California incident, where a couple amassed a large number of children through various surrogacy agreements, raises disturbing questions about oversight, parental intent, and the potential for exploitation. The fact that the couple reportedly operated a surrogacy investment company, coupled with claims from surrogates who felt deceived about the scope of the arrangements, highlights a critical gap in understanding and enforcement.

Navigating Global Disparities

The legal landscape surrounding surrogacy is a complex and often contradictory patchwork across the world. While some countries have established comprehensive frameworks, others operate in a legal vacuum, leading to significant ethical and practical challenges.

Michigan’s recent shift in its surrogacy laws serves as a compelling example of the impact of legislative change. For years, Michigan was the only state in the U.S. to criminally ban paid surrogacy contracts, forcing biological parents to go through arduous and emotionally taxing adoption processes to gain legal parentage of their own children. The signing of the Michigan Family Protection Act in 2024, which legalizes and regulates surrogacy, is a monumental victory for families and highlights the critical importance of clear legal pathways.

In stark contrast, Nigeria currently exemplifies the challenges of a largely unregulated environment. While surrogacy is not explicitly prohibited, its lack of legal recognition creates a breeding ground for uncertainty and potential exploitation. The absence of specific legislation leaves intended parents, surrogates, and medical professionals navigating a grey area where rights and responsibilities are ill-defined. This vacuum has led to calls for greater oversight and the introduction of new legislation, such as the Nigeria Surrogacy Regulatory Commission Bill 2024 and the 2025 Bill to Protect the Health and Wellbeing of Women.

The Nigerian Context: Striving for Regulation and Protection

The ongoing legislative efforts in Nigeria reflect a growing awareness of the need for a structured approach to surrogacy. The proposed Nigeria Surrogacy Regulatory Commission Bill 2024 aims to establish a regulatory body (NSRC) to monitor and supervise surrogacy arrangements, requiring agencies to be registered and emphasizing altruistic surrogacy while prohibiting commercial surrogacy. It also seeks to limit eligibility for surrogacy to those unable to conceive or carry a child to term, raising questions about inclusivity for diverse family structures.

Similarly, the 2025 legislative proposal explicitly bans commercial surrogacy, allows for reimbursement of medical and pregnancy-related expenses, and includes provisions against coercive or forced arrangements, with penalties for violations.

The Child’s Best Interest

At the heart of any discussion about surrogacy must lie the paramount principle of the child’s best interest. The California case, with children ranging from 2 months to 13 years old placed in protective custody, serves as a stark reminder of the potential for profound impact on a child’s well-being when surrogacy arrangements go awry or are founded on deception.

Ensuring the child’s best interest requires:

  • Clear Legal Parentage: Ambiguity surrounding who the legal parents are can lead to prolonged legal battles, emotional distress for the child, and instability in their upbringing. Laws must establish clear and straightforward pathways for intended parents to be recognized as legal parents from birth.
  • Protection from Exploitation: This extends to both the surrogate and the child. Regulations must prevent the commodification of children and ensure that surrogates enter into agreements voluntarily, with full information and adequate support, free from coercion or financial duress.
  • Comprehensive Screening and Support: Robust legal frameworks should mandate thorough medical and psychological evaluations for all parties involved, intended parents and surrogates to ensure their suitability and capacity to provide a safe and nurturing environment for the child.
  • Transparency and Accountability: Regulatory bodies are essential to oversee surrogacy arrangements, ensure ethical practices, and provide avenues for redress in cases of malpractice or exploitation.

The complexities highlighted by the California investigation and the ongoing legislative debates underscore a global imperative for thoughtful and comprehensive surrogacy laws. These laws must be designed to:

  1. Ensure Protection: Safeguard the rights and well-being of both surrogate mothers and, most importantly, the children born through these arrangements.
  2. Ensure Clarity and Certainty: Provide clear legal frameworks for parentage, rights, and responsibilities, minimizing legal ambiguities and potential for disputes.
  3. Promote Ethical Practices: Regulate the surrogacy industry to prevent exploitation, commercialization of human life, and deceptive practices.
  4. Prioritize the Child’s Best Interest: Place the welfare, safety, and stable upbringing of the child at the forefront of all decision-making processes.

As scientific advancements continue to expand reproductive options, the legal and ethical frameworks surrounding them must evolve concurrently. The incidents unfolding in California serve as a powerful warning, urging nations to act decisively to establish robust, humane, and child-centric surrogacy regulations that prioritize protection, and transparency.

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