Oct 9, 2020

Legal Regulation of Surrogacy Contracts in Nigeria: Is the Consumer Delving into Delving Into Murky Waters | Emaediong Ofonime Akpan (Esq. LL.M)

 


     

Introduction

The pioneer record of surrogacy had Hagar as the surrogate mother with Abraham and Sarah as the commissioning parents. This form of surrogacy commonly referred to as a partial surrogacy where the child born is only genetically related to one of the commissioning parents was prevalent in pre-colonial Nigerian societies. The practice of surrogacy was common in Nigeria long before its legal recognition around the world. The practice of surrogacy in pre-colonial Nigeria was regulated by unwritten customs and practices. The surrogate mother was married in to the family by the commissioning couple usually the wife. Children birthed by the surrogate were deemed children of the marriage and the commissioning parents had sole rights. These partial surrogacy arrangements were borne out of the need to continue a family legacy. However, this is not the case today as surrogacy arrangements are taking a new shape with gestational surrogacy taking the lead. Furthermore, couples turning to surrogacy do so because of fertility issues, health complications, and terminal illness etetera.to further complicate issues there is a lack of specific legislation to cater to the unique legal issues of surrogacy.

            The practise of surrogacy raises complex legal concerns which consumers are usualy not aware of. Whilst some border on the legality of a surrogacy contract, others are concerned with its holistic regulation. This article considers the legal intricacies of surrogacy and mirrors the uncertainties occasioned by the lack of a specific legal framework for its regulation in Nigeria. It was discovered that Nigeria is a pro-birth society hence it is necessary that a legislation be put in place urgently noting that more couples are turning to surrogacy to help them achieve their reproductive rights. This article recommends amongst others that a legislation on surrogacy must reflect the present concerns that surround the practise of surrogacy. These range from the exploitative aspect of surrogacy and the need to take into cognisance the provisions of the United Nations Convention on the Rights of the Child.This article analyses some of these legal issues raised by surrogacy arrangements in Nigeria.

2.0 Concept of Surrogacy

            Surrogacy comes from the Latin word “subrogare” meaning to substitute. Surrogacy as a situation where a woman (third party) carries a pregnancy for the commissioning parents and hands the child over to the commissioning parents after its delivery. There are two main types of surrogacy, gestational surrogacy (also known as host or full surrogacy1) which was first achieved in April 1986 and traditional surrogacy (also known as partial, genetic, or straight surrogacy). In gestational surrogacy, the pregnancy results from the transfer of an embryo created by in vitro fertilization (IVF), in a manner so the resulting child is genetically unrelated to the surrogate. Gestational surrogates are also referred to as gestational carriers.

 

3.0 Surrogate Contract

            In surrogate contracts a third party female elects or is commissioned to carry a pregnancy on behalf of another couple, delivers a baby and hands the child over to the commissioning parents at birth. Two forms are discernible, depending on the existence or not, of the genetic link between the surrogate mother and the foetus. When there is a genetic link, the surrogate mother is inseminated with the semen of the commissioning father or donor sperm, this is referred to as “traditional surrogate motherhood” and she is biologically the mother of the baby. When pregnancy is as a result In vitro fertilization in the woman, and she has no genetic contribution to the foetus, it is regarded as gestational surrogacy.

 

4.0 Legal Issues of Surrogacy Contract in Nigeria

1.      Contractual Enforcements

            There is a dearth of a defined position on the enforceability of a surrogacy contract in Nigeria. While they are based on simple contract terms the concern is whether such contracts are enforceable in Nigerian courts. The basic element of contract are offer, acceptance and consideration of value. Arguments against the enforceability of surrogacy contract stem from a moral basis. In addition, there is a question of the tendency of such contracts being used to exploit vulnerable persons who are usually the surrogate mothers. The enforceability of surrogate contracts appear to change the humanity narrative which forms the core of surrogacy commercialisation. The National Health Act in section 10 provides as follows;

A person shall not:

(a) manipulate any genetic material, including genetic material of human gametes, zygotes or embryos; or

(b) engage in any activity including nuclear transfer or embryo splitting for the purpose of the cloning of human being; (c) import or export human zygotes or embryos.

(2) A person who contravenes or fails to comply with the provision of this section commits an offence and is liable on conviction to imprisonment for a minimum of five years with no option of a fine.

            Based on the provisions of the National Health Act, the entire process of surrogacy is illegal hence it cannot be said that a surrogacy contract is enforceable as it seeks to do that which has been clearly prohibited by the relevant legislation being the National Health Act. While the Act remains the legal instrument on which to base the legality of surrogacy contracts there is a bill pending at the National Assembly. The Bill when passed to law will establish a Registry of Assisted Reproductive Technology Clinics and Banks in Nigeria. The Registry will be saddled with the formulation of policies for the regulation of Assisted Reproductive Technology such as surrogacy.The bill provides that surrogacy is not to be considered for any commissioning mother who is able to carry a pregnancy to term, thus a commissioning mother must provide a medical report to attest to her inability to carry a pregnancy to term. The Bill limits persons who can enter into a surrogacy contract to infertile married couples. This would appear to be based on the long-abandoned kind of surrogacy agreement prevalent in pre-colonial Nigeria where the rationale was to continue a family legacy. Today, infertility is not the only reason couples opt for surrogacy contracts as health implications are also popular reason. The Bill therefore limits the scope of persons who can take advantage of a surrogacy contract to fully take advantage of their reproductive rights.

            Surrogacy contracts in pre-colonial Nigeria was widely publicised and given recognition. More so, the surrogacy contract was given validity and legal fore by virtue of the marriage relationship that existed between the surrogate mother and the commissioning parents. This sort of protection is not guaranteed in the current practice of surrogacy considering that couples prefer that such contracts are shrouded in secrecy as opposed to that which was obtainable in pre-colonial Nigeria. It is unclear how far the Bill will go to address the issues of contractual enforcements of surrogacy agreement.

2.      Rights of Parties in a Surrogacy Contract

            The National Health Act (Amendment) Bill provides for the rights of parties in a surrogacy contract. Specifically section 76(2) of the Bill gives the gamete donor the right to decide the extent of information to be released and to whom, except otherwise ordered by the court. This would mean that the donor can chose to be anonymous, or only give information that cannot be used in identifying him. Furthermore, the Bill provides that a spouse who donates a gamete without the knowledge of the other spouse, without coercion, shall relinquish rights over the child or children that may be conceived using his gamete and, to this end, the identity of the recipient is not made known to the donor.

            The foregoing appears to be in contravention of the Child’s right to preserve his identity and know his parents as provided under the Article 8 of the Child’s Right Convention. In pre-colonial Nigeria the surrogate or sperm donor had no claim on the children birthed from such arrangements. Similarly, in the United Kingdom the sperm donor cannot be regarded as the legal parent of the child born. He also have no legal obligation to the child. Conversely, the position appears different for the surrogate who is regarded as a child’s legal parent at birth. Legal parenthood can be transferred by parental order or adoption after the child is born. This transfer is only possible within six months of the child’s birth. Disagreements on who the child’s legal parents should be are decided based on the best interests of the child. The lofty position of the UK legal framework can only avail a person who used a Human Fertilisation and Embryology Authority. This connotes government control of the process.

3.      Child’s Right to Disclosure

            Surrogacy contracts also raises question of the child’s right to know his parents as provided for under Article 7 of the Child’s Right Convention Children from surrogacy may want to have full disclosure of their parentage in later years. Umeora et all questions if it would be ethically correct not to fully disclose their origin to them, including who carried them “in utero”? Such disclosure especially when there is a genetic link may be medically invaluable. Complications may arise where the surrogate mother declined such disclosure ab initio at the contract level, or where all contact links between the parties were severed. The Convention in Article 8 also provides to the effect that a child has a right to preserve or identify his nationality, name and family relations. The Article further provides that where a child is illegally deprived of all or some of the elements of his or her identity the State shall provide appropriate, assistance and protection, with a view to re-establishing speedily his or her identity. It is unclear how this is to be achieved considering that surrogacy is more often than not shrouded in secrecy. It is also makes matters worse when the National Health Act (Amendment) Bill allows for the parties in a surrogacy agreement to withhold personal information that may allow for contact tracing in the future.

4.      Conclusion

            Few technologies arrive ‘surreptitiously’ and few remain unchanged overtime one of such is the development of techniques to assist in reproduction. This article examined one aspect of this being surrogacy. The practice of surrogacy in pre-colonial Nigeria was found to be popular and was given legality by the conduct of a customary marriage. However, in present Nigeria there is no specific legal framework for surrogacy in Nigeria and the proposed framework still leaves unaddressed some legal issues addressed in this paper. There exists increasing pouches of lacunae as regards regulatory oversight for human right violations particularly in drawing a line of distinction between legitimate and reproductive trafficking. It is recommended that there is an urgent need to recognise and regulate surrogacy in Nigeria.in addition such framework ought to balance the tendencies of exploitation and clearly define the rights of the parties to a surrogacy contract. 

 

References

1.         R B Bernholz and G N Herman, ‘Legal Implications of Human In Vitro Fertilization            for the Practicing Physician in North Carolina’ (1984) 6(1)Campbell Law Review,p.44.

2.         M K McCartan, ‘A Survey of the Legal, Ethical, and Public Policy Considerations of            In Vitro Fertilization’ (2012)2(3) Notre Dame Journal of Law, Ethics & Public Policy,   p.696.

3.         W E Burger, ‘Reflections on Law and Experimental Medicine’, (1968) 15 UCLA Law             Review, p. 436, 440

4.         R J Cook., B.M. Dickens and M.H. Fathalla Reproductive Health and Human Rights.             (New York: Oxford University Press. (2003).

5.         The case of R. V. Human Fertilization and Embryology Authority, exp. Blood (1997)            2 All ER 687 (Court of Appeal, England).

6.         K Sedlenieks, Klavs, ‘New Reproductive Technologies: Towards Assisted Gender             Relations.’ (1999) An Essay for MPhil Degree, Department of Social Anthropology,             University of Cambridge.

7.         M E Lones, ‘A Christian Ethical Perspective on Surrogacy,’(2016)2(1) Bioethics in     Faith and Practice

 


Akpan, Emaediong Ofonime holds a Master’s in Consumer Protection. She is currently undergoing a Harvard course on Bio Medical Ethics. She can be reached at akpanemaediongofonime@gmail.com.

 

 

 


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