Contemporary society’s concept of procreation, parental rights as well as child rights have proven to be an evolving continuum with the introduction of Surrogacy as one of the artificial reproductive techniques gaining acceptance in the absence of any legal framework regulating its existence and efficacy among contracting parties in Nigeria. This is another typical allusion where legal and ethical issues lag behind human innovation.
With surrogacy contracts, an infertile couple can rely on an alternative means to adoption, a method which has proven to be more effective than the cumbersome procedure associated with the latter in this part of the world.
Surrogacy contracts involves a tripartite contractual relationship with commissioning parents, the surrogate and a surrogate agency, acting as middleman for the former to secure a surrogate mother who agrees through artificial insemination to conceive, deliver and hand over the baby to the commissioning parents at birth.
The first popular judicial pronouncement on the subject matter of Surrogacy came to light in New Jersey (USA) in the case of Baby M in 1987.
In this case the surrogate mother refused to relinquish parental rights to the commissioning couple after delivery in 1986. Consequently, the commissioning parents contested the parental rights of the surrogate which was already waived by contract. The Supreme Court of New Jersey gave recognition to the surrogate arrangement between the parties, awarding legal custody to the commissioning parents on the rationale that the best interest of the baby was being considered among other things.
The concept of surrogacy has been an intrinsic human reality going back to the story of Abraham, Sarah who secured Hagar’s assistance in the procreation process, albeit biologically, today our legal jurisprudence in some part of the world recognises this medical intervention through, traditional surrogacy; a practice where the surrogate mother contributes genetically to the conception of the baby by a fertilisation of her own eggs via In-Vitro Fertilisation (IVF) (i.e. artificial insemination of the surrogate’s egg with the commissioning father’s semen)[i] and gestational or host surrogacy also known as rent a uterus: a practice where the surrogate mother does not contribute genetically to the conception of the baby. Here, the surrogate is strictly the carrier of the pregnancy. This means that a prior fertilised egg (embryo) is implanted into the uterus of the surrogate and the surrogate carries the pregnancy to full term.
No doubt this emerging trend is fraught with challenges from the perspective of the commercialisation of reproduction, social tussle over a child where the surrogate eventually withdraws from the original arrangement or breaches same all together, which more often, the commissioning parents usually have a stronger bargaining power over the surrogate in accessing judicial intervention or negotiating monetary settlement to possess the child in question, whilst keeping the surrogate at bay[ii].
Some countries like the United Kingdom, France, Bulgaria, Portugal, Italy, Germany, outrightly prohibit surrogacy. While countries like the USA, Canada or Australia, depending on the jurisdiction, allow it, providing for residency or citizenship for the commissioning parents and/or surrogate.
Notwithstanding, legal aspects[iii] of surrogacy hinge on a few central questions:
- Are surrogacy agreements enforceable, void, or prohibited? Does it make a difference whether the surrogate mother is paid (commercial) or simply reimbursed for expenses (altruistic)?
- What, if any, difference does it make whether the surrogacy is traditional or gestational surrogacy?
- Is there an alternative to post-birth adoptionfor the recognition of the intended parents as the legal parents, either before or after the birth?
In a society like Nigeria, where this practice is rarely overt, the surrogate is likely to be isolated once the news spreads in the community since it is in contradistinction with our cultural beliefs to approach procreational intervention through a third party, when a man has the option of being polygamous, in addition to the fact that the surrogate’s medical/obstetrics history is disclosed to the commissioning parents, infringing on the physician – patient confidentiality
With surrogate agencies[iv] emerging in Nigeria as registered companies or business entities, it is important to cover this human phenomenon through judicial pronouncements as well as legislations in consideration of enforceability of such contracts, ethical consideration on non-disclosure, whether it should be an option to legal abortion, import the concept of closed or open adoption to surrogacy, while policy makers should frame regulations sufficiently required to guide the practice of surrogacy in terms of addressing social mores, human rights, parental rights, child rights and intestacy rights (since the child is not the full blood of both parents) in Nigeria.
If ever you choose to resort to surrogacy, endeavour to engage the service of a family lawyer who has expert knowledge on this area of law, to draft a surrogate contract for you or review the contract emanating from the surrogate’s attorney or a surrogate agency, in order to adequately protect your interest and advice on the safety or otherwise of carrying it out in Nigeria or in a jurisdiction where it is recognised. I look forward to hearing from you (my contact details are in my Linkedin profile).
[ii] The surrogate often times is a woman with weak economic means
[iv] Meet Surrogate Mothers Agency Limited is a popular example