By Sonnie Ekwowusi
You may be well aware that, even though gay practices and gay marriage are illegal in Nigeria by virtue of the Same-Sex (Marriage) Prohibition Act of 2014, Europe and America continue to mount pressure on Nigeria to legalize LGBTQ+ rights and, by extension, transgender rights, as well as the sexualization of our school children. However, that is a discussion for another day.
The focus today is on surrogacy or surrogate motherhood.
Below is part of the paper I presented in Italy in April 2024. I recall that one of the speakers at the conference was a beautiful married lady who was a product of surrogacy.
Midway through her presentation, she broke down in tears while recalling her painful experiences as a result of being a product of surrogacy.
Surrogate motherhood has gained traction in different parts of Europe and America, and, since Nigeria tends to imitate American and European lifestyles, surrogate motherhood is also widely practiced in Nigeria.
For instance, last year, a young man and a young lady walked into our law firm. The young man explained that the young lady had consented to act as a surrogate mother for his future child, and he asked me to draft a surrogate agreement between them.
I wasted no time in telling him that, even though I needed money, I would not draft such an agreement. I went further to explain to both the young man and the young lady the illegality and ethical issues tied to surrogacy. I don’t think I succeeded in convincing them otherwise before they abruptly left our law firm. So, yes, surrogacy thrives in Nigeria.
As I mentioned earlier, it is distasteful to uncritically adopt foreign lifestyles and impose them on our people. If Europe and America are now defined by LGBTQ+ rights and surrogate motherhood, that does not mean we should follow suit.
A people without identity are a people without existence. We are different; we have our cultural heritage and identity. We should not blindly adopt foreign lifestyles and impose them on our society. Only the Nigerian National Assembly is empowered, by virtue of Section 4(1) and (2) of the 1999 Constitution, to make laws that reflect the aspirations of the Nigerian people. Europe and America do not have the locus standi to make laws for Nigeria or dictate to us how we should make our laws.
The consensus reached at various United Nations Conferences is that laws passed in every developing country, including Nigeria, must reflect the diverse social, economic, and environmental conditions of that country, with full respect for their religious, cultural backgrounds, and philosophical convictions.
Surrogacy can be classified into traditional surrogacy and gestational surrogacy. Traditional surrogacy is when a woman provides her own egg, which is fertilized by artificial insemination, and she carries and delivers the baby on behalf of another person or couple.
On the other hand, gestational surrogacy is when a person, who did not provide the egg used in conception, carries a fetus through pregnancy and gives birth to the baby for another person or couple. In this case, the gestational carrier is not genetically related to the child.
Surrogacy may be commercial or altruistic. Commercial surrogacy is when the surrogate is paid for carrying the pregnancy and delivering the baby.
Altruistic surrogacy occurs when the surrogate does not receive any financial compensation for the pregnancy. This usually happens when there is a familial bond or close relationship between the intended parents and the surrogate mother.
Thus, surrogacy is an arrangement where one or more intended parents agree with a woman that she will carry a child for the purpose of delivering it to them upon birth, regardless of whether the arrangement is made directly or through third parties.
A woman who undertakes, for the benefit of the intended parents, to carry a child for their account and deliver the child to them at birth is called a gestational carrier. The individuals who enter into this agreement with the gestational carrier are called the intended parents or orderers.
There are also intermediaries in this business—middlemen who ensure that gestational carriers fulfill their contracts to the orderers. These intermediaries are individuals or corporate bodies that connect the gestational carrier with the intended parents and mediate between them.
Therefore, the contract in which the intended parents agree with one or more gestational carriers that the carriers will deliver the child to the parents at birth is called surrogacy.
Celebrities who have used surrogate motherhood to have children include Sarah Jessica Parker and Matthew Broderick, Neil Patrick Harris and David Burtka, Nicole Kidman and Keith Urban, Elton John and David Furnish, and soccer star Cristiano Ronaldo.
Surrogacy and celebrities made headlines again recently with the announcement that a celebrity couple became fathers to a baby boy on Christmas Day. As ABC News reported on January 4th, they join a long list of celebrities who have used surrogate mothers to have children.
This list includes couples like Sarah Jessica Parker and Matthew Broderick, Neil Patrick Harris and David Burtka, and Nicole Kidman and Keith Urban, who had a baby daughter, born on December 28th via a surrogate mother.
This news came shortly after it was reported that Elton John, David Furnish, and soccer star Cristiano Ronaldo were almost aborted by their respective mothers. The world would have been bereft of soccer legend Ronaldo if his mother had succeeded in aborting him during her pregnancy.
PROPONENTS OF SURROGACY
They argue that it is a happy ending for couples who would otherwise not be able to have children. Commercial surrogacy helps couples desperate for children to fulfill their dreams. Claire Harvey called it “an extraordinary gift of love.”
Surrogate mothers offer to share their gifts of good health and fertility to benefit those who are not so fortunate, she said. “It’s a deliberate gift of compassion, patience, and love from one woman to another.” Tracey Spicer recounted her own difficulties in conceiving and noted that there are thousands of women who suffer from infertility.
However, she acknowledged that in some cases, such as when women from countries like India are hired to give birth for Western couples, there is injustice.
There is no denying the deep pain of a couple unable to have children, but while surrogacy may resolve one problem, it creates many others.
OPPOSITION TO SURROGACY
Surrogacy is criticized for combining the objectification of women’s bodies with the commercialization of childbirth. This practice diminishes the humanity of the woman who bears the child, and it undermines the intense bond that develops between a mother and her child during pregnancy. Even if the woman is paid, as most U.S. surrogates are, the act of surrogacy is seen as a commercial transaction that undermines her dignity and intrinsic worth.
Many argue they feel uncomfortable with the current trend of surrogate babies, as if they were a fashion accessory. In the case of homosexual couples, some view surrogacy as a form of exploitation, where people who cannot naturally have children rent a woman’s womb to bear children for them.
Yvonne Roberts once published an article in The Guardian (UK) where she argued that surrogate motherhood, or “renting wombs,” is dehumanizing. She stated, “A woman may choose to be a surrogate of her own free will, but this assumes that we live in a society without serious disparities in power and income.” Roberts added, “There are some corners of the soul into which even those with bottomless wallets should not go.”
Other commentators, however, have expressed support for surrogacy.
- PlanetHospital splits eggs from the same donor to fertilize them with different sperm or allows couples to choose the sex of their child. Since 2007, the organization has facilitated about 459 births.
- Poor countries are victims of surrogacy. The Wall Street Journal published a detailed article about the new industry of producing babies using women from low-income countries. PlanetHospital, for example, uses women from countries like Bulgaria and arranges for them to give birth in Greece, where lax laws make it easier to operate. They also offer the “India bundle”—a package deal combining egg donors and embryo transfers into multiple surrogate mothers in India. Some UNILAG girls sell their eggs as part of this market.
- It will lead to an increase in the trafficking of human beings and human tissue.
- Surrogacy seeks to legitimize the manipulation and renting of women’s wombs, as well as the manipulation of embryos and zygotes, the import and export of human embryos, and the splitting and harvesting of human eggs and sperm.
- Children born through surrogacy, especially international surrogacy arrangements (ISAs), are at risk of multiple human rights violations—particularly their right to an identity, including name, nationality, family relations, and access to their origins.
Their right to the highest attainable standard of health, and their right not to be sold (as stated in the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution, and Child Pornography [OPSC]), are also at risk.
In surrogacy situations, decisions made by adults may discriminate based on the child’s disability or gender, contrary to the child’s best interests. Given the predominantly commercial nature of many surrogacy arrangements, children born through surrogacy risk being sold or exploited. - Establishing and preserving identity can be difficult or impossible for children born through surrogacy. Articles 7 and 8 of the Convention on the Rights of the Child (CRC) protect a child’s right to be registered at birth and to preserve their identity, but surrogacy can negatively impact these rights.
- Legal parentage in surrogacy raises challenges to the child’s rights. While it is in the best interests of children to establish legal parentage as soon as possible after birth, such arrangements may violate the child’s right to identity.
- Children are at greater risk of being sold in commercial surrogacy arrangements. The sale and trafficking of children born through surrogacy, especially in ISAs, are occurring due to a lack of protective safeguards by states. A legally binding contract between the surrogate mother and the intending parents, established pre-birth and conditional upon payment, would constitute the sale of a child.
COURT LAW
The increasing use of surrogacy has sparked a series of court battles. In England, where paying surrogates beyond what is needed to cover medical costs is supposedly prohibited, a judge recently questioned the interpretation of the law.
In a High Court decision, Justice Hedley stated that the law on surrogacy payments was unclear, and allowed a British couple to keep a newborn child, even though they had paid the American surrogate more than what the law considers “reasonable expenses.”
In another case, Anthony and Shawn Raftopol, who were legally married in Massachusetts in 2008, had twin boys born through a donor egg and a surrogate mother.
They live in Holland and were concerned that Shawn, who is not the biological father, might be accused of trafficking the children when traveling across borders. The court ruled in their favor, stating that Shawn could be listed on the birth certificates without undergoing an adoption process.
In another case, a homosexual couple paid an Indian mother to give birth to twin girls and sought full legal status for the non-genetic father. Justice Paul Cronin ruled that while the word “parent” traditionally implies a biological connection, “biology does not really matter; it is all about parental responsibility.”
Sometimes surrogates refuse to hand over the babies after birth, leading to legal disputes. In a recent case in Britain, a surrogate was allowed to keep the baby, with Justice Baker ruling that it was in the child’s best interests to remain with the biological mother.
Husbands and wives ought to understand that sexuality, by which they give themselves to one another, is not merely biological; it concerns their innermost beings. Every life is priceless, and each soul is more valuable than the entire universe.
Therefore, they cannot freely decide to destroy human lives through artificial techniques and genetic enhancement methods.
According to James Stenson, God smiles on couples who generously receive the children He sends them. He uses their busy, happy family life to strengthen each child in faith and virtue.
Through the parents’ sacrifice and self-giving, God forms strong, self-confident men and women who carry the faith forward in history. The home of a large family is a happy home, filled with healthy fun and play.
Artificial reproduction refers to creating new life through means other than the natural methods available to humans. Examples include artificial insemination, in vitro fertilization (IVF), cloning, and embryonic splitting or cleavage, among others.
Artificial reproduction could lead to the destruction of the family institution in Nigeria, as seen in Western countries. Since artificial reproduction allows trading in sperm storage and donations, the concept of parenthood would be obliterated, making it difficult to determine the father or mother of a child, whether in wedlock or out of it.
Several social conflicts regarding paternity are bound to arise, tearing families apart. The divorce rate would likely increase as marriages break down because either partner could procreate without the other.
There will be more single mothers since women can now buy sperm for fertilizing their eggs. Numerous court litigations concerning paternity issues are also expected to arise.
According to Arland K. Nicholis, at a recent annual meeting of the European Society of Human Reproduction and Embryology, it was announced that five million babies have been born following IVF procedures since 1978. Today, approximately 350,000 IVF babies are born annually, and the numbers continue to rise.
However, the fact remains that most human beings created in laboratories die before being given a chance at life. Only one in six embryos created through the IVF process survives to birth. In July 2011, Britain announced that for every child born through IVF, thirty embryos were created.
This means that for a typical couple seeking IVF, somewhere between five and thirty of their children died to allow the birth of one. On a global scale, this suggests that 30 to 150 million children have died because of IVF.
At best, IVF, according to Nicholis, is like playing Russian roulette with six people, except only one chamber of the gun is empty. IVF treats the new human being as little more than a cluster of cells to be graded, selected, and discarded.
Sadly, such loss of life is ignored and accepted by the IVF industry. These “failures and fatalities” are not recognized for what they truly are by most physicians involved in IVF—it has become a standardized aspect of the procedure. Furthermore, the beautiful images of babies, slogans about “building families,” and the pristine walls of fertility clinics hide this harsh reality from would-be parents.
Arguments supporting embryonic research assume that fetuses and embryos do not have rights equal to individuals, which is erroneous. Section 33 of the 1999 Constitution stipulates a personal right to life that supersedes that of the State.
The moral issues involved in manipulating human eggs, embryos, and conducting embryonic stem cell research or cloning cannot simply be overlooked in the name of advancements in fertility and therapeutics.
These practices encourage the exploitation and trafficking of human eggs and embryos. Many healthcare practitioners have become millionaires through this form of human embryo trade.
It is also clear that the Nigerian government would face challenges in resisting the manipulations and financial pressures from unscrupulous groups who stand to gain from trafficking in human eggs, embryos, and embryonic research.
This is a multibillion-dollar industry that is difficult to regulate, especially in a third-world economy with an ineffective police system, judicial checks, or regulatory agencies.
ALTERNATIVES TO SURROGACY
a. Natural Procreative Technology: An alternative to IVF and artificial reproductive methods
Natural Procreative Technology (NaProTECHNOLOGY) offers real medical alternatives to IVF and other artificial reproductive methods. Based on the Creighton Model Fertility Care System, NaProTECHNOLOGY helps women track their menstrual cycles and understand the intricacies of their fertility. With the support of a Fertility Care Practitioner and a NaProTECHNOLOGY-trained physician, women can identify and address underlying gynecological health issues.
NaProTECHNOLOGY provides real, effective, medical, and ethical alternatives. Its treatments always respect the dignity of women, the procreative value of marriage, and the sanctity of any children born. It promotes health and conception in a manner that honors human life and the marriage relationship.
- NaProTECHNOLOGY results in healthier pregnancy outcomes compared to IVF.
- It has helped failed IVF patients achieve live births.
- It is usually more affordable for couples than IVF.
- It pursues conception in a way that respects the dignity of a baby’s life.
- It promotes the marriage relationship. (For more information, contact Dr. Henrietta Williams at Tel-08062378524)
SURROGACY IS INCOMPATIBLE WITH AFRICAN INSTRUMENTS
Surrogacy is incompatible with cherished human values as enshrined in African and international human rights instruments. It equates a human being with an animal, presupposing that humans “reproduce.” However, only animals reproduce; humans procreate. Surrogacy also violates the African Charter on Human and Peoples’ Rights, to which Nigeria is a signatory.
THE NIGERIAN LAW
Generally, 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 upon the processes and procedures of surrogacy, even without mentioning the term “surrogacy.” At this point, it is important to list the elements present in every surrogacy arrangement and compare them with the verbs listed in section 30 of the Child Rights Act to truly understand its impact on surrogacy in Nigeria.
It is also important to read and understand section 30 without focusing on its side notes or marginal notes (since side notes do not form part of statutes). Moreover, it must be emphasized that the Child Rights Act protects both born and unborn children.
Generally, there are several forms of surrogacy, but science groups them under two key types: gestational surrogacy and traditional surrogacy. According to Olusesan Ayodeji Makind et al., “In gestational surrogacy, the surrogate mother is implanted with an in-vitro fertilized embryo from the parents or donors, whereas in traditional surrogacy, the surrogate mother contributes the egg (Field, 2014).
In some surrogacies, neither the sperm nor the egg is genetically linked to either the commissioning couple or the surrogate mother (Field, 2014).”
Surrogacy involves an agreement between parties regarding the renting of a womb and dealings concerning babies, as seen in all types of surrogacies. In some cases (particularly gestational surrogacy), the egg and sperm may not belong to the surrogate mother. However, the surrogate carries the baby and delivers it, after which the baby is sold to the commissioning couple.
Thus, there is always an agreement to pay, and payment is made to the surrogate mother for relinquishing her child and her rights over the child at birth. Nigerian jurisprudence is not yet equipped to address the argument over whether a surrogate mother is the child’s mother in cases where both the egg and sperm belong to other parties, and the surrogate merely rented her womb. It seems that being a mother is understood to mean the person who carried and gave birth to the child.
In all cases, the parties in surrogacy agreements “…buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child,” which is contrary to section 30 of the Child Rights Act.
The critical question is: “Can a person enforce an agreement to buy and sell a baby (surrogacy agreement), even if all parties agree?” The answer is no, as surrogacy agreements concern unlawful acts and cannot be enforced by any court. Unfortunately, there are no known case laws where the court has ruled on surrogacy agreements.
It is important to allow some exceptions to the above conclusion. There are cases where surrogate mothers provide their services without charging or accepting fees.
For example, a biological mother of a woman facing difficulties with pregnancy may become a surrogate for her daughter. In cases where there is no payment, arguably, the parties do not “…buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child.” However, a closer focus on the words “…dispose of or obtain possession of or otherwise deal in a child” may invalidate this position and classify all forms of surrogacy as unlawful and illegal.
If parties in surrogacy agreements “…buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child,” then surrogacy is a criminal offense under the Child Rights Act. Therefore, surrogacy and other forms of trading in children are punishable by up to ten (10) years of imprisonment.
Application of the Child Rights Act: The Child Rights Act is federal legislation enacted to protect children’s rights across Nigeria. The long title of the Child Rights Act reads that the law is made “…to provide and protect the rights of a Nigerian child; and other related matters.” The use of “Nigerian” before “child” suggests that the Child Rights Act intends to apply to all Nigerian children and all parts of Nigeria.
However, the Nigerian Constitution omits child rights from the exclusive and concurrent legislative lists, leaving such matters under the jurisdiction of state governments. As a result, some states in Nigeria have enacted their own Child Rights Laws, which are replicas of the Child Rights Act. However, several northern states have not enacted these laws, and children’s rights are continually violated through practices such as child marriage.
Given this situation, it is difficult for anyone to be convicted under the Child Rights Act in states that lack Child Rights Laws. The Child Rights Act has full force and application in the Federal Capital Territory (FCT), Abuja, where only federal laws apply.
Therefore, surrogacy is criminal in Abuja under the Child Rights Act and also in states that have enacted Child Rights Laws. In contrast, surrogacy is not criminal in states that have not enacted such laws.
Legality of Surrogacy under the Trafficking In Persons (Prohibition) Enforcement And Administration Act: The Trafficking In Persons (Prohibition) Enforcement And Administration Act (TIPPEA Act), a federal law, also significantly impacts surrogacy. Section 13 of the TIPPEA Act condemns all forms of human trafficking. Section 82 defines trafficking as including “…the giving or receiving of payments or benefits to achieve the consent of a person having control over another person or debt bondage for the purpose of placing or holding the person in servitude (domestic, sexual, or reproductive), forced or bonded labor, or slavery-like conditions, the removal of organs, or generally for exploitative purposes.” This definition clearly encompasses surrogacy, especially where surrogate mothers are paid for reproductive services, which can be viewed as exploitative.
The TIPPEA Act defines “exploitation” to include “…the exploitation of the prostitution of others or other forms of sexual exploitation, deprivation of the offspring of any person, forced labor or services, practices similar to slavery, servitude, or the removal of organs.” Any surrogacy that takes advantage of a surrogate mother through force or deception constitutes human trafficking and is, therefore, a crime.
This is one of the reasons surrogacy practices, particularly in “baby factories” (where women are forced or deceived into pregnancy), are illegal.
Section 21 of the TIPPEA Act states: “Any person who buys, sells, hires, lets, or otherwise obtains possession or disposal of any person with intent or knowledge that the person will be subjected to exploitation commits an offense and is liable on conviction to imprisonment for a term of not less than 5 years and a fine of not less than N2,000,000.00.” This criminalizes all surrogacy agreements that exploit surrogate mothers and is punishable by a minimum of 5 years imprisonment, a fine of at least N2 million, or both.
Until a legal framework for surrogacy is established, and it is expressly decriminalized, surrogacy agreements involving “…buying, selling, hiring, letting on hire, disposing of or otherwise dealing in a child” are criminal under the Child Rights Act and its equivalents in Nigerian states.
Although the law may be outdated, it remains valid until amended or repealed. The Child Rights Act criminalizes all forms of the exchange of babies for money, a core element of surrogacy. Therefore, surrogacy is unlawful in parts of Nigeria that have enacted the Child Rights Act or similar laws.
Unlike the Child Rights Act, the TIPPEA Act is a federal law applicable throughout Nigeria. All states are bound by its provisions. The TIPPEA Act criminalizes surrogacy where a surrogate mother or her child is exploited, and any surrogacy that amounts to reproductive exploitation is considered human trafficking, a federal crime.
In many areas, developed nations have moved ahead of Nigeria on issues like surrogacy. Childbirth is crucial, especially in African societies, where children symbolize social status. Science has given hope to those who would have been labeled infertile centuries ago, with surrogacy now a key part of fertility management. Nigerian laws must evolve to accommodate this development, as laws should grow with society and reflect its true state.
Surrogacy and the Nigerian Constitution: Surrogacy violates sections 17(3)(h), 21, 33, 37, and 38 of the 1999 Constitution. Section 17(3)(h) of the Constitution states that the Nigerian government should promote the family. According to the Nigerian Law Reform Commission, the family is the fundamental unit of society and the custodian of moral and traditional values.
The destruction of the family institution inevitably leads to the destruction of Nigerian society. Surrogacy could undermine the family institution, as it has in Europe and America. With surrogacy, proponents engage in sperm storage and donation, and the legal concept of parenthood is disrupted.
It could become difficult to determine a child’s father or mother within or outside wedlock, leading to social conflicts, increased divorce rates, and challenges with inheritance law. Moreover, marriages may break up as couples no longer need each other for procreation, and the number of single mothers may increase due to the ease of purchasing sperm for fertilization.
Section 21(a) of the Constitution enjoins the state to protect and promote Nigerian culture. Practices such as sperm donation, cloning, in vitro fertilization, and surrogacy are not part of Nigerian culture.
Every society has its values, and laws should reflect those values. Nigeria must adhere to its traditions, and importing foreign practices should not be done at the expense of societal values. In his book, Who Gives the Law? Determining the Jurisprudential Question, Professor John Ademola Yakubu argues that the only way to avoid societal chaos is for the legislature to make laws that align with the people’s values.
Additionally, surrogacy infringes on sections 33, 37, and 38 of the Constitution, which enshrine the rights to life, privacy, and family life, and freedom of thought, conscience, and religion.
International Convention for the global prohibition of surrogacy
Currently, international human rights law does not provide specific safeguards for domestic surrogacy and International Surrogacy Arrangements (ISAs), putting children born through surrogacy at risk. Moreover, very few states have legal and policy frameworks that protect the rights of children in ISAs and, in some cases, domestic surrogacy.
Surrogacy is banned in the European Union, as Article 3 of the Charter of Fundamental Rights of the European Union states: “In the fields of medicine and biology, the following must be respected in particular: … the prohibition on making the human body and its parts as such a source of financial gain.”
CONCLUSION
