Legal Provisions and Grey Areas
For George and many other vulnerable women that take this oft-exploited and unethical path, it is fraught with so many half-truths, hearsays and a conditioning of their minds without any recourse to their personal health and future complications. It brings one to question if there are legal frameworks to protect them. This has led many to argue that surrogacy is legitimate in Nigeria, but the surrogacy laws in Nigeria remain ambiguous, this definitely has created room for exploitation and illegitimate practices to thrive.
Generally, parties involved in surrogacy are usually bonded by a written agreement that states all the rights and obligations of all parties involved. However, a critical look at Section 30 of the Child Rights Act (2003) prohibits the ‘buying, selling, hiring, let on hire dispose of or obtain possession of or otherwise deal in a child’.
Also, the Trafficking In Persons (Prohibition) Enforcement and Administration Act also condemns all forms of human trafficking.
Onyekachi Umah, Esq in his daily law tip 778, said “section 30 of the Child Rights Act is against surrogacy in Nigeria. The section reads; “No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child”. This provision clearly frowns at the processes and procedures of surrogacy, even without mentioning the term, “Surrogacy”.
Speaking to BONews, Barr Oluyemi Orija, the Founder of Headfort Foundation, a pro-poor legal firm, noted that Nigeria is still struggling to find the appropriate legal framework to provide guidelines for this reproductive process.
Orija said “in Nigeria, there are no specific laws regulating Assisted Reproductive Technology. Surrogacy being one of the techniques has no law regulating the procedures in Nigeria. The closest law that has come towards regulating surrogacy is the Assisted Reproductive Technology [ART] Bill 2016 but this bill is yet to be promulgated into a Law or Act.
“Lagos State on the other hand passed a guideline on assisted Reproductive Technology in 2019 leaving the remaining 35 states of Nigeria and the FCT with law on surrogacy or Assisted Reproductive system. It is important to state that surrogacy is not a crime in Nigeria, and neither is there any law providing for it,” she added,
Timothy Adewale, a lawyer and the Executive Director of Centre for Health Equity and Justice (CEHEJ), an NGO that promotes reproductive health rights, decried the absence of substantial law to regulate Assisted Reproductive Technology (ART) in Nigeria, which according to him has left Nigerians to dictate their terms.
Adewale told BONews that, “we do not have laws that regulate ART in Nigeria, whether it is egg donor, IVF or surrogacy. It is more or less left to the dictates of those who are involved, and we have seen cases of manipulations of different kinds.”
Adewale who commended Lagos State for regulating ART through HEFAMAA, noted that there is a need for a substantial law at the National and state levels, to guide what he described as an important part of life.
He said, “Normally, the National Assembly is supposed to pass a bill and when it has been signed into an Act, it then trickles down to the states for domestication. For instance, the National Health Act covers the issues of using humans, foetus as scientific research, but doesn’t specifically say about ART.
“There is a need for a law to regulate ART at the National level, because if it is well guided in a state, people can go to another state to do whatever they like,” the CEHEJ Director said.
Absence of law: opportunity for illegal practices
Mrs. Odukoya of ParahFamily Foundation noted that the absence of a legal framework has led to the prevalence of sharp practices in some fertility clinics and some surrogacy agencies run like baby factories.
Odukoya said, “you cannot rule out sharp practices since there are no guiding principles. I don’t know any hospital that is involved in illegality but there are a lot of baby factories under the guise of fertility clinics.
“Some clinics would even give injections to women and that will make their stomachs feel bloated but they are not pregnant, and at the end of the day, they would just give out a baby to such a woman, and the woman might have thought she did IVF,” she added.
Mrs. Odukoya thereafter highlighted the importance of counselling for couples seeking alternative fertility options so they are able to make informed decisions, instead of being made to get involved in illegality.
Orija said she has not had first-hand experience of any illegality in fertility clinics, added that ‘nothing is impossible’.
She said, “I have heard stories where the oocytes (eggs) of young ladies are collected for a meager amount of money by fertility clinics without proper sensitization on the consequences to the girls.
“Girls who are in dire need of money continually donate eggs, with no proper documentation, medical care after donation and sensitization, these to me are inappropriate .”
The absence of comprehensive legislation governing surrogacy in Nigeria gives an opportunity for unscrupulous individuals to exploit vulnerable women and couples desperate for a child. Urgent attention from lawmakers is required to establish clear guidelines and protect the rights of all parties involved.
International Practices and Guidelines
Comparing Nigeria's surrogacy landscape with other countries, I found that well-regulated surrogacy programs focus on transparency, informed consent, and the protection of the surrogate's physical and emotional well-being.
Several countries have adopted comprehensive laws that balance the interests of intended parents, surrogates, and donors.
For instance, countries like Australia, Ukraine, Mexico and Colombia where surrogacy is legalised, the surrogates do not get paid, other than being reimbursed for medical and other ‘reasonable’ expenses.
Perhaps, if surrogates are not rewarded handsomely, maybe many women would not consider it as a survival option.
The importance of regulation cannot be overemphasised as Adewale remarked that, “It is important to note that ART has come to stay and it should be regulated in line with global best practices.”
Adopting Better Approach to Surrogacy
For Mrs. Odukoya, counselling of couples, regulation and collaboration among key agencies are vital to improve the fertility sector in Nigeria.
Odukoya stressed the need for legislation and said, “Surrogacy is not a government legalised option in Nigeria, most of the things we do, we don’t have legal backing to it. There are individuals who make legal arrangements, between the hospital, the surrogate mother and the hospital involved. But this cannot be taken to court if anyone defaults.
“In Parah, when we bring our members together, we bring all these options to the table, so they know why they should select a specific option, and they are better informed about all it entails,” she added.
She believes that the government needs to show more commitment to the lives of citizens by setting up laws to guide surrogacy and other assistive fertility methods in Nigeria.
“There is a need for collaboration between surrogacy agencies, hospitals, and the government to establish ethical practices and regulations in the fertility space. The current lack of government attention and involvement allows unethical practices to flourish,” she explained.
Odukoya hinted that some surrogacy agencies do not have proper accreditation and hide under the hospital noted that “there should be continuous monitoring of health facilities so that there can be clampdown on those who are involved in illegality.”
With the adoption of relevant laws, it is important that transparency, ethical standards, and proper medical protocols are enforced, to ensure the safety and dignity of surrogates and intended parents alike. Only then can Nigeria move towards a surrogacy industry that operates within legal boundaries and upholds the highest ethical standards, providing hope for couples, without exploitation of innocent women.
Barrister Orija also substantiated that the government must put a legal framework in place to regulate all the processes involved in ART in order to curb the excesses and unethical practices of agencies, individuals and hospitals.
She said “the creation of laws to regulate how Assisted Reproductive Technology is carried out is essential to prevent shady practices like baby making factories, prostitution, human trafficking, illegal semen, and egg harvesting agencies amongst others.
“When all necessary measures are put in place, there will be a huge reduction in all these atrocities because when there’s a law or laws in place regulating Assisted Reproductive Technology, the perpetrators of evil where Assisted Reproductive Technology is concerned will be apprehended, brought to book, and prosecuted.”
But before then, very desperate couples in search of parenthood will continue to swim and search the murky waters of surrogacy in Nigeria for self-fulfilment. Lawmakers in Nigeria should hearken to the saying that a stitch in time saves nine, this time around there are vulnerable women to be saved
This is the third in the series ‘Inside the Murky waters of Surrogacy and the Rise of Baby Factories in Nigeria’ read the first part and second part.
Editor’s Note: All the names of the donors in this story are not real names, to protect the identity of the ladies.
This report was supported by the Wole Soyinka Center for Investigative Journalism (WSCIJ) under its Report Women! Female Reporters Leadership Programme (FRLP), champion building edition.