SURROGACY IN NIGERIA: A COMPARATIVE ANALYSIS OF ITS ISSUES VIS-A-VIS

OUR CONTEMPORARY SOCIETY.

RUTH OLUCHI OBETA

ABSTRACT

On December 3, 2021, Nollywood actress Ini Edo confirmed that she had welcomed her baby via
surrogacy.1 This revelation raised eyebrows and sparked different reactions and debates amongst
Nigerians. While some persons commended her for "taking the bold step" others expressed
outright discontent with the idea of surrogacy. There is no gainsaying that surrogacy, especially
in third-world countries like Nigeria remains a controversial concept that proposes lots of issues
and dilemmas. In this essay, I gave a general overview of surrogacy in Nigeria and analyzed the
issues around surrogacy in the country from three different perspectives: legal, ethical, and
medical perspectives vis-a-vis our contemporary society. Subsequently, I furnished practical
recommendations on how to properly manage the issues of surrogacy in Nigeria.

Keywords: Surrogacy, Issues, Perspectives, and Nigeria.

1.0 INTRODUCTION

Now, more than ever, surrogacy as an assisted reproduction-based approach for child-bearing is
on the rise. Although there are no global figures on how many children have been born through
surrogacy, the development of Assisted Reproductive Technology (ART), changes in social
norms, and the trend of having children later are leading to more children being born through
surrogacy.2 With the predominantly commercial nature of many surrogate contracts in

1 Onu Stephen, "Why I Chose To Welcome My Baby Via Surrogacy- Ini Edo"
https://www.premiumtimesng.com. Accessed on 27th July, 2023
2 Unicef, "Key Considerations: Children's Rights And Surrogacy" (February, 2022)
contemporary Nigerian society, we would be shooting ourselves in the leg if we allow the
prevailing misconceptions around surrogacy and make no efforts towards regulating its impacts.

2.0 SURROGACY IN NIGERIA: A CONCEPTUAL ANALYSIS.

Surrogacy is an arrangement whereby on agreement, a person (the surrogate) bears a child for
another (the commissioner) and unconditionally hands over all rights concerning the child,
including the child's custody, upbringing, care, and legal parenthood to the commissioner. 3 It is
classified into traditional and gestational surrogacy. In traditional surrogacy, the surrogate
contributes genetically to the child. It involves the direct process of artificial insemination to
form an embryo in the surrogate's womb. In gestational surrogacy, the surrogate is implanted
with an embryo already formed with the genetic material of both commissioning parents. 4
Surrogacy is further classified into altruistic and commercial surrogacy. In altruistic surrogacy,
the surrogate is usually a friend or family member who agrees to carry a child for another woman
out of free will while in commercial surrogacy, the surrogate usually has no prior relationship
with the commissioning parents but is only contracted to carry the child after which she is paid
for her services.

Surrogacy is yet to be fully accepted in Nigeria due to the moral, religious, and cultural
landscape of the country.5 However, the practice of surrogacy is not strange to Nigerians.
Altruistic surrogacy is a common practice in some parts of Nigeria. For instance, in the Igbo
culture, there is a practice in which a woman who could not have children of her own gets
another woman to carry a pregnancy and bear children for her. 6 Furthermore, with technological

3 Onyekachi Umah Esq, LLM. ACIArb(UK) "Why Surrogacy Is Unlawful In Parts Of Nigeria"
Accessed on 27th July, 2023.
4 M.Simopoulou, et al. "Risks In Surrogacy Considering The Embryo: From The
Preimplantation To The Gestational And Neonatal Period" National Library of Medicine. (July
17, 2018)
5 Okeke Miracle Ifenna, LLB, Nnamdi Azikiwe University, Awka. "The Legality And
Enforceability Of Surrogacy Contracts In Nigeria" <papers.ssrn.com>Sol3>papers. Accessed
on July 27th, 2023
advancements in medicine, some Nigerian couples who cannot bear children of their own due to
infertility, absence of a uterus in the woman, or other health challenges are opting for surrogacy.

3.0 ISSUES AROUND SURROGACY IN NIGERIA

Indeed, surrogacy has brought some relief and new opportunities for childless couples desiring to
become parents in Nigeria. However, it also raises some legal, ethical, and medical issues which
beg not to be overlooked. These issues shall be discussed below:

3.1 LEGAL ISSUES

The legal issues around surrogacy in Nigeria borders on whether or not surrogate contracts are
legally enforceable in Nigeria. While there is no specific law that enables or regulates the
practice of surrogacy in Nigeria, there are some laws and principles that were not enacted
purposely for surrogacy but have an indirect impact on it. These laws include The Child Rights
Act (2003), and The National Health Act (2014) amongst others. Some provisions of these laws
have been used by certain scholars to argue that surrogate contracts are illegal and unenforceable
in Nigeria. However, to avoid making an error of jurisprudence this argument must be taken with
caution. To avoid such error, the essential question to be considered is whether surrogacy
amounts to trade in babies such that it would void for illegality. 7 To place this in context, the
provisions of these laws will be examined in turn. To start with, Section 30(1) of the Child Rights
Act reads:

"no person shall buy, sell, hire, dispose of or obtain possession of or otherwise deal in a child"
Subsection (3) further provides that:

6 Okwuosa Ikechukwu Kenneth, "An Ethical Evaluation Of Traditional Surrogacy In Igbo

Culture, South-East Nigeria"

7 See Okeke Miracle, "Legality and Enforceability of surrogacy contracts in Nigeria" Ibid
"a person who contravenes the provisions of the subsection (1) of this section commits an offence
and is liable on conviction to imprisonment for a term of ten years."

Following the above provisions of the Child Rights Act, it can be deduced that commercial and
traditional types of surrogacy involve trading or dealing in babies and, thus, are illegal. However,
gestational surrogacy arrangements cannot be described as trading in babies because there is a
genetic link between the baby and the commissioning parents. There is no legal or moral
justification to declare the surrogate the legal mother. This was the view of the court in Johnson
V. Calvert.8

Likewise, Section 50 of the National Health Act provides that "a person shall not manipulate any
genetic material including genetic material of human gametes, zygotes or embryos" Subsection
(2) of the section also provides for a punishment of at least five years imprisonment for persons
who are found liable upon conviction. Scholars who use the above provisions of the National
Health Act to argue against surrogacy mostly focus on the connotative meaning of the word
"manipulate." However, it is trite law that in the interpretation of statutes, the courts in Nigeria
only use connotative meanings or the golden rule of interpretation where the literal or denotative
meaning leads to absurdity. The word "manipulate" as used in Section 50 of the National Health
Act denotatively means alteration and that is the sense in which it ought to be construed under
that section. Taking it in its connotative sense will do great injustice to the intention of the
legislature.9

3.2 ETHICAL ISSUES

In addition to the legal issues, there are diverse ethical issues raised by surrogacy in Nigeria.
These issues include the fact that contemporary surrogacy practice contravenes public policy and

8
5 Cal. 4th 84; 19 Cal. Rptr. 2d 494, 851 P.2d 776 (1993) 9
Okeke Miracle, Ibid
encourages the objectification of women's bodies as it places the reproductive capacity of women
in the marketplace and involves "renting wombs." 8 In the same vein, it promotes the exploitation
of poor and vulnerable women who enter into surrogate arrangements as a means of solving their
financial problems.

Furthermore, on ethical grounds, surrogacy in Nigeria is criticized for threatening the sanctity of
family relationships.9 Undoubtedly, Nigerian cultural beliefs place value on the bond between
mother and child. Modern surrogacy is therefore seen as a catalyst for ethical and cultural
degradation that encourages the commodification of children and interferes with nature. It is also
argued that the practice of "altruistic" surrogacy in some Nigerian cultures whereby a young
woman is married to bear children (sons) who will continue the lineage of an older woman
whose husband and son(s) are late encourages adultery and promotes the notion that female
children are not as important as the male children.

3.3 MEDICAL ISSUES

The practice of surrogacy in Nigeria raises rudimentary medical issues concerning the risks
involved during pre-implantation, prenatal, and neonatal periods. It is axiomatic that the
processes involved in carrying out successful childbirth via surrogacy are delicate and risky.
Issues such as abnormal implantation, low implantation rate, low embryo quality, and reduced
trophoblast development may lead to miscarriages and abnormal formation of the baby.
Additionally, stress and malnutrition play a role in the child's and surrogate's health and may be
responsible for the development of cardiovascular diseases, allergies, schizophrenia, depression,
etc.10 To this end, both the surrogate and the child should be properly taken care of in surrogacy
arrangements as failure to do so may amount to complications or death.

8 Mehpara Haq, "Ethical and moral issues concerning surrogacy": The RMLNLU Law Review
Blog.

9 E. Babatunde, "Culture, Religion and the self: A critical study of Benin and Yoruba Value
systems Of Change in Nigeria" Lewiston New York: Edwin Mellon Press; 1992

10 M. Simopoulou, et al. Supra note 4

Similarly, surrogacy in Nigeria raises the issue of whether the Nigerian healthcare system is
competent enough to handle the intricacies of surrogate pregnancies. Lack of access to healthcare
remains the major cause of high maternal and infant mortality rates in the country. A study by
UNICEF shows that Nigeria records 576 maternal mortality per 100,000 live births, while
approximately 260,000 babies die at birth every year. 11 The insufficiency of sophisticated
medical facilities and the alarming rate at which the few qualified doctors in Nigeria are leaving
the country due to poor working conditions contribute to the lack of access to healthcare. Now,
the pertinent question is: can the intricacies of surrogate pregnancies be effectively dealt with in
Nigeria? I would argue that considering the complexities and delicate nature of the processes
involved in surrogate pregnancies, surrogacy cannot be properly handled with the current sorry
state of our healthcare system, especially in rural areas.

4.0 CONCLUSION AND RECOMMENDATIONS.

The typical surrogacy contract is for a noble purpose, aimed at helping childless couples to have
their biological children through the help of a third party. 12 However, considering the legal,
ethical, and medical issues around surrogacy in Nigeria, individuals should take precautions
before entering into surrogate contracts. Additionally, the government should enact a specific law
to regulate surrogate contracts in Nigeria, this should be done in line with acceptable ethical
standards and customary practices. Enacting a specific law regulating surrogacy will not only
help to eliminate the fears and dilemmas around surrogacy in the country but also to duly
sanction parties who fail to keep to the terms of their agreement. Again, there should be public
sensitization through seminars and media broadcasts on the dangers of the commercialization of
women's bodies/fertility in Nigeria. Employment opportunities should also be created in all parts
of Nigeria to avoid cases of women entering into commercial surrogacy contracts as a means of

11 Agency Report: "situation of women and girls in Nigeria"

https://www.unicef.org/nigeria/situation-women-and-children-nigeria. Accessed on 27th July,
2023

12 Okeke Miracle, Supra.

making money. Finally, to ensure that surrogacy in Nigeria meets international best practices, the
Nigerian healthcare system should be improved to meet the standard requirements and handle the
processes involved in carrying out successful surrogate pregnancies.