Premium Times Nigeria — NG Legal Update

Nigeria's surrogacy practice operates within a significant regulatory vacuum, leading to considerable legal uncertainties and ethical concerns for all parties involved. While Assisted Reproductive Technology (ART) services, including surrogacy, are increasingly prevalent, there is no comprehensive federal legislation to govern these arrangements. This absence creates ambiguities regarding parentage, child protection, the rights and welfare of surrogate mothers, and the enforceability of surrogacy agreements. Existing laws, such as the Child's Rights Act 2003 and the National Health Act 2014, offer limited and indirect guidance, highlighting an urgent need for a dedicated legal framework to ensure transparency, prevent exploitation, and safeguard the best interests of children born through surrogacy.

The landscape of assisted reproductive technology (ART) in Nigeria, particularly surrogacy, is marked by a conspicuous absence of a comprehensive legal framework. Despite the growing prevalence of surrogacy as a viable option for individuals and couples grappling with infertility, the practice largely exists in a legal grey area, relying predominantly on private contractual agreements and fragmented ethical guidelines. This regulatory lacuna has prompted significant concerns among legal practitioners and stakeholders regarding the protection of all parties involved in surrogacy arrangements.

The lack of clear statutory provisions creates a precarious environment where fundamental issues such as the legal parentage of children born through surrogacy, the rights and welfare of surrogate mothers, and the enforceability of agreements remain largely unresolved. This legal uncertainty not only exposes commissioning parents and surrogates to potential disputes and exploitation but also raises profound questions about the best interests and legal status of the children. The urgent call for legislative intervention underscores the critical need to establish a robust and transparent regulatory system that aligns with international best practices while addressing Nigeria's unique socio-cultural context.

This article examines the current regulatory landscape of surrogacy in Nigeria, highlighting the specific gaps that necessitate legislative action. It will delve into the challenges posed by the absence of clear laws concerning child protection, parentage recognition, surrogate mother welfare, and the overall transparency of ART arrangements. By drawing on existing legal instruments and comparative insights, this analysis aims to underscore the imperative for a dedicated legal framework to bring clarity and protection to Nigeria's evolving surrogacy practice.

In Nigeria, the practice of surrogacy is not explicitly prohibited, yet it is also not expressly regulated by any federal statute. This creates a 'legal grey area' where medical advancements have outpaced legislative responses. While various fertility clinics operate across major cities, offering a range of ART services including surrogacy, their operations are largely guided by internal protocols, general medical ethics, and, in some instances, state-level guidelines.

The existing legal instruments that might tangentially relate to surrogacy are insufficient to address its complexities. The Child's Rights Act 2003, for instance, prioritises the best interests of the child in all matters concerning them, but it does not contain specific provisions for children born via surrogacy, leading to ambiguities regarding their legal status and parental rights. Similarly, the National Health Act 2014 provides a framework for healthcare services but remains largely silent on ART procedures, including surrogacy. The Code of Medical Ethics in Nigeria offers some professional guidelines for assisted conception and related practices, acknowledging the use of high-technology reproductive processes, but these are ethical directives rather than legally binding comprehensive regulations.

Attempts have been made to introduce federal legislation, such as the Nigeria Surrogacy Bill 2024, the Assisted Reproductive Technology (Regulation) Bill, and the National Health Act (Amendment) Bill, aimed at establishing a comprehensive legal framework. However, none of these bills have been fully enacted, perpetuating the regulatory vacuum. Lagos State has made some progress with its Lagos State Assisted Reproductive Technology (ART) Law, 2021, which provides guidelines for ART services, including surrogacy, but this remains a state-specific initiative and does not offer national coverage or uniformity.

The absence of a dedicated federal legal framework for surrogacy in Nigeria creates several critical challenges for legal practitioners and all parties involved. A primary concern is the recognition of parentage. Nigerian law generally adheres to the principle of *mater semper certa est*, meaning the woman who gives birth is presumed to be the legal mother. This presumption directly conflicts with the intent of surrogacy arrangements, where the commissioning parents intend to be the legal parents. Without clear legislation, commissioning parents may face significant hurdles in establishing their legal connection to the child, potentially requiring complex and often uncertain court orders.

Child protection is another paramount issue. In the absence of regulation, the welfare, identity, and legal status of children born through surrogacy are vulnerable. Disputes over custody or parental responsibility can arise, and without a statutory framework, courts are left to decide based on the child's best interests under the general provisions of the Child's Rights Act 2003, which may not adequately address the unique circumstances of ART. Furthermore, the lack of a legal mechanism for registering children in the names of commissioning parents from birth can lead to identity issues and complicate matters of citizenship, especially in international surrogacy arrangements.

The protection of surrogate mothers is also severely compromised. The unregulated environment increases the risk of exploitation, particularly for women from economically disadvantaged backgrounds. Issues such as unfair compensation, delayed or withheld payments, and coercive contracts are prevalent. While some agreements are treated as private contracts, their enforceability is uncertain, as courts may refuse to uphold them if they are deemed contrary to public policy or if the surrogate decides to retain the child. The potential for commercial surrogacy to be construed as human trafficking under the Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 further highlights the legal risks.

Transparency and regulatory oversight of ART clinics and agencies are largely lacking. Without specific legislation, there are no unified standards for clinic registration, medical protocols, counselling requirements, or the handling of gamete and embryo donation. This creates an environment susceptible to unethical practices and a lack of accountability. Comparative jurisdictions, such as South Africa with its Children's Act 2005, provide a robust model by requiring mandatory High Court confirmation of surrogacy agreements before conception, explicitly defining parental rights, and prohibiting commercial surrogacy. Similarly, the United Kingdom's Human Fertilisation and Embryology Act 2008 and Surrogacy Arrangements Act 1985 offer structured approaches to regulating ART and surrogacy, providing valuable lessons for Nigeria.

The ongoing legislative efforts, such as the Nigeria Surrogacy Bill 2024, aim to address these gaps by proposing a comprehensive framework that includes provisions for consent, medical and psychological evaluations, and the establishment of a regulatory commission. However, until such legislation is enacted, the legal landscape remains fraught with uncertainty, making careful legal guidance and advocacy for reform essential for practitioners navigating these complex arrangements.

The current regulatory vacuum surrounding surrogacy in Nigeria presents a complex and high-risk environment for all stakeholders. The absence of a comprehensive federal legal framework leaves critical issues such as child protection, the recognition of parentage, the rights of surrogate mothers, and the ethical conduct of ART clinics largely unaddressed. This legal ambiguity necessitates that legal practitioners exercise extreme caution, advising clients on the inherent uncertainties and potential legal challenges, particularly concerning the enforceability of agreements and the establishment of legal parentage.

For attorneys, navigating surrogacy arrangements in Nigeria requires a deep understanding of general contract law principles, the Child's Rights Act 2003, and the Code of Medical Ethics, while acknowledging their limitations in this specialized area. It also involves proactive measures such as meticulous drafting of agreements, advising on the necessity of potential court orders for parentage, and emphasizing independent legal and psychological counselling for all parties. The ongoing legislative initiatives at the federal level, and the existing state-level guidelines like those in Lagos, offer a glimpse into future regulatory directions, but their full impact remains to be seen. Practitioners should closely monitor these developments and advocate for the swift enactment of clear, comprehensive legislation that prioritises the welfare of the child, protects vulnerable parties, and ensures transparency and ethical practice in assisted reproductive arrangements.