A GUIDE TO SURROGACY IN NIGERIA ( YFL 009)
Surrogacy in Nigeria is a complex and evolving area of law and practice. Here’s an overview:
Legal Framework
The Marriage Act: The Marriage Act (1990) does not explicitly address surrogacy, but it does provide for the registration of births and the rights of parents.
The Child Rights Act: The Child Rights Act (2003) provides for the welfare and best interests of children, including those born through surrogacy.
The National Health Act: The National Health Act (2014) regulates assisted reproductive technology (ART) services, including surrogacy.
Nature of surrogacy in Nigeria
Types of Surrogacy:
Traditional Surrogacy: In this type of surrogacy, the surrogate is also the egg donor. The woman provides her own egg, which is fertilized by artificial insemination, she then carries the pregnancy and delivers on behalf of another person or couple.
Gestational Surrogacy: In this type of Surrogacy, a woman who did not provide the egg used in conception, carries the embryo created and inserted into her through Invitro-Fertilization (IVF) for the duration of pregnancy and gives birth to a baby or babies for another person or couple. Usually, this means that the gestational carrier is not genetically connected or related to the child.
Surrogacy Agreements: Though there are no specific legislations on this in Nigeria, Surrogacy agreements are often used to outline the terms of the surrogacy arrangement, including compensation, medical care, and parental rights.
IVF Clinics: Several IVF clinics in Nigeria offer surrogacy services, including fertility treatments, embryo transfer, and pregnancy care.
Surrogacy Agency: Though it is very difficult to distinguish the quacks from the genuine ones, it is preferable to engage legitimate Surrogacy Agents who can help in sourcing for the appropriate carriers and follow through till delivery of the child or children. This must be done under the guidance of Family Law Solicitors.
Challenges and Controversies
Lack of Clear Regulation: The absence of explicit laws and regulations governing surrogacy in Nigeria creates uncertainty and risks for all parties involved.
Cultural and Social Stigma: Surrogacy is not widely accepted in Nigerian culture, and many people view it as unconventional or even immoral.
Exploitation and Abuse: The lack of regulation and oversight creates risks of exploitation and abuse of surrogates, intended parents, and children.
Applicable Law
A growing number of couples and single persons desirous of having children but challenged in that regard are turning to surrogacy in Nigeria because it offers hope and veritable opportunities for them to build families and raise children. It is desirous therefore, and even imperative for a robust legislative framework to be put in place to effectively regulate the practice and guarantee the protection of the rights and legitimate interests of all involved in the process. Until then, persons interested in surrogacy must be handheld by appropriate professionals to achieve desired results in the most ethical manner.
It is our considered legal opinion that in view of the near absence of a regulatory framework or laws on surrogacy in Nigeria, recourse can be had to the laws applicable in England for the time being on the subject. There are judicial precedents for this position:
In the case of Oyekan V. Oyekan (1960), the West African Court of Appeal held that English law is applicable in Nigeria where there is no local law on the subject matter.
In the case of Adegbenro V. Akintola (1963), the Supreme Court of Nigeria held that English Law can be applied in Nigeria where there is a lacuna in the local law.
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