Surrogacy and the Law in Nigeria

Due to the premium placed on procreation in some parts of the world, a lot of couples are unnecessarily pressurized whenever they experience delay in conception.

Sometimes, the man feels emasculated and less a man because of societal assumptions that real men get women pregnant. The woman who is termed barren, usually have to endure stigmatization and snide remarks from different quarters. Parenthood traditionally defined in terms of biological and adoptive relationship has taken on new meanings with the advent of Assisted Reproductive Technologies (ARTs). Extraordinary advances have been made in medicine and reproductive health to respond to the desire in having children. One of such innovation is surrogacy.

Surrogacy is an arrangement where a woman (surrogate) gets pregnant and gives birth on behalf of another person (commissioning or intended parent) who will become the child’s legal parents. Its incursion in medicine has provided the much needed respite for parties who struggle with achieving natural conception, are unable to carry a child to term and those who look forward to starting a family of their own. Nowadays, the option of opting for surrogacy is not limited to individuals with health related problems or infertility alone. Other reasons for the preference of surrogacy include: sexual orientation of parties involved especially in same sex relationships, tokophobia, advanced maternal age or career considerations.

Surrogacy arrangements can be altruistic or commercial in nature. Generally, they are of two types- traditional or genetic surrogacy and gestational surrogacy. Traditional or genetic surrogacy involves a surrogate’s egg being used for conception mainly by intrauterine insemination. For gestational surrogacy, the surrogate carries and gives birth to a child using the gamete of one or both intended parents. The embryo is created in the laboratory and inseminated into the surogate’s uterus. More often than not, the surrogate here (gestational surrogacy) is not in any way genetically related to the child, she is only used to birth the child.

In NIgeria at the moment, there is no clear legal framework or regulation for surrogacy.  The procedure is neither legally acknowledged nor expressly prohibited by extant laws. Surrogacy arrangements are usually contractual and formal. They are enforced on the contractual principles of offer, acceptance and consideration which are necessary for creating and entering into valid contracts.  It has been argued that the absence of clear legal framework leaves surrogates vulnerable to exploitations. The uncertainties regarding legal rights and obligations of parties involved further shrouds the whole arrangement in illegal and unethical mysteries.

Due to the non-existing/ grossly inadequate legal protection for surrogates in Nigeria, the need to establish recognizable framework for ethical practices as regards surrogacy has been of great concern. This gave birth to the Nigeria Surrogacy Regulatory Commission Bill 2024 before the Nigerian House of Representatives. The Bill seeks to establish the Nigerian Surrogacy Regulatory Commission (NSRC) for the monitoring and supervision of surrogacy arrangements in Nigeria. It provides that surrogacy agencies shall be registered with the Corporate Affairs Commission (CAC) and the NSRC- section 7(1).

It is important to state that the Bill recognizes surrogacy strictly for altruistic purpose(s) and prohibits commercial surrogacy. It is expected that the offering or receiving of money, benefit or similar consideration in exchange for acting as a surrogate shall not take place under surrogacy arrangements (Section 9). The proposed enactment places limitation on the eligibility for surrogacy. Under section 10 (1) (2), only persons (whether married or single) certified to be unable to conceive or carry a child to term are eligible to seek surrogacy. The implication of this provision is that individuals who do not fall under this category (like same sex partners, persons who do not want procreation to affect their professional or career progression, those who are afraid of the whole pregnancy/childbirth process, single matured adults) are shut out of surrogacy arrangements even when they are capable of funding it.

In order to protect the welfare of surrogates, the Bill requires that the agreement be formally drawn up, in writing and signed by parties involved in the arrangement. It mandates a voluntary and informed consent to a surrogacy arrangement. The proposed enactment stipulates that before parties go ahead with the surrogacy arrangement, the agreement be registered with the NSRC. (See sections 12). It appears that the requirement of registration with NSRC is to ensure that the processes leading up to the surrogacy procedure complies with requirements of the law. Where the proposed procedure is in breach of specific requirements, NSRC being the regulator nips it in the bud by not registering or approving it.

A review of the proposed law further reveals that there is a requirement mandating parties to be evaluated to determine their suitability for the surrogacy arrangement. Parties who fail this medical/psychological test are deemed unfit to stand in as surrogates. As lofty as this pre-surrogacy arrangement is, it is unfortunate to note that similar requirement is not available in the course of the pregnancy or after the pregnancy. There are instances where it may be necessary to provide specialized medical and psychological care for the surrogate mother especially after birth. The proposed enactment is silent about this.

In addition to the Nigeria Surrogacy Regulatory Commission (NSRC) Bill 2024, there is also a 2025 legislative proposal-a Bill that seeks to protect the health and wellbeing of women, particularly in relation to surrogacy and other related matters. This other 2025 Bill was read for the first time at the floor of the House of Representatives on May 21, 2025. A cursory look at this recent Bill reveals some provisions similar to the NSRC 2024 Bill.  The 2025 Bill amongst other key provisions completely bans commercial surrogacy, endorses surrogacy for altruistic purpose and leaves exception for reimbursing medical and pregnancy related expenses.  There are provisions guarding against coercive or forced surrogacy arrangements. Individuals or health practitioners who violate provisions of the proposed law could face up to two years imprisonment, a fine of up to two million naira or both.

It is heartwarming to note that matters pertaining to Assisted Reproductive Technologies (ARTs) and surrogacy in particular are receiving legislative attention.  However, there are questions waiting for sincere answers- If any of these Bills  (Nigeria Surrogacy Regulatory Commission Bill 2024 or  the Bill to Protect the Health and Wellbeing of Women, Particularly in Relation to Surrogacy and other related matters) eventually become enacted law, will it eliminate or at best reduce the demand for surrogacy? will the notoriously common commodification of children,  exploitation of financially handicapped women and commodification of women’s reproductive systems  be a thing of the past? Will it fuel the drive for baby factories or trafficking of children? or will it encourage medical tourism and push surrogates/ intending parents to jurisdictions where surrogacy arrangements are unregulated?

Bearing in mind that a major key principle of international best practice is ensuring that best interest of the child is upheld at all times in matters that concern children, in the distant future, we can only hope for the best as far as legislation is concerned.

References

Adelakun, O. A ‘The Concept of Surrogacy in Nigeria: Issues, Prospects and Challenges’  (2018) (18) (2) African Human Rights Law Journal.

Ezenwa, B.N, and 7 others. The Growing Trend of Surrogacy in Nigeria: Implications   for Quality Newborn Care: A Case Report. (2024) (66) (5) Nigerian Medical Journal.

Kolade-Faseyi,  I and Deji-Jayeoba, O. ‘Statutory Control of Assisted Reproductive Technologies in Nigeria: To be or Not to be? (2020) (6) (2) Journal of International Law and Jurisprudence,’ 233.

Onyemelukwe, C. and Ukpo, Q. ‘Protecting the Rights of Surrogates under the Proposed Legal Regime on Surrogacy in Nigeria’ Centre for Health Ethics Law and Development (CHELD) Publication. https://cheld.org/?sdm_process_download=1&download_id=3088  accessed 8 July, 2025.

https://www.premiumtimesng.com/news/615803-surrogacy-absence-of-laws-spurs-unethical-practices-in-nigeria-3.html

Ojo, A. Nigeria Surrogacy Regulatory Commission Bill (2024); Exploring Family Law, Legislative Gaps in Surrogacy Nigerian Tribune https://tribuneonlineng.com/nigeria-surrogacy-regulatory-commission-bill-2024-exploring-family-law-legislative-gaps-in-surrogacy/amp/