Surrogacy has become an increasingly discussed option for individuals and couples who are unable to conceive naturally. In Nigeria, however, the practice exists in a complex space where medical advancement has outpaced legal regulation. While surrogacy arrangements continue to grow, the absence of a comprehensive national legal framework has created uncertainty, particularly for surrogate mothers, intending parents, and medical practitioners.
This article examines surrogacy in Nigeria from a legal and human perspective, highlighting the current state of the law, the challenges faced by surrogate mothers, and practical solutions within the Nigerian context.
What Is Surrogacy?
Surrogacy is an arrangement in which a woman (the surrogate mother) agrees to carry and give birth to a child on behalf of another person or couple (the intending parent(s)), with the understanding that the child will be handed over to the intending parent(s) after birth.
Surrogacy typically takes one of two forms:
Traditional Surrogacy
In traditional surrogacy, the surrogate mother’s own egg is used, meaning she is genetically related to the child. Fertilization may occur through artificial insemination.
Gestational Surrogacy
In gestational surrogacy, the surrogate carries an embryo created using the egg and sperm of the intending parents or donors. In this case, the surrogate has no genetic link to the child.
Gestational surrogacy is more commonly practiced today due to fewer emotional and legal complications.
The Position of the Law on Surrogacy in Nigeria
Absence of a Comprehensive Federal Law
Nigeria currently has no specific federal legislation that expressly regulates surrogacy. The practice is neither expressly legalized nor expressly prohibited under Nigerian federal law. As a result, surrogacy operates within a legal grey area, largely governed by contract law principles, medical ethics, and fragmented state legislation.
State-Level Regulation
A notable exception is Lagos State, which has taken steps to regulate aspects of assisted reproductive technology through health-related laws and guidelines. Even so, these regulations are limited and do not fully address critical issues such as parental rights, enforceability of surrogacy agreements, or the welfare of surrogate mothers.
In most other states, there is no statutory framework governing surrogacy arrangements.
Enforceability of Surrogacy Agreements
Because surrogacy agreements are not expressly recognized by statute, their enforceability depends largely on general principles of contract law. Courts may be reluctant to enforce certain aspects of such agreements where:
Public policy considerations arise;
The agreement appears to commodify childbirth;
The welfare of the child is in question;
Additionally, Nigerian law places significant emphasis on mater semper certa est—the legal presumption that the woman who gives birth to a child is the mother. This creates uncertainty as to legal parenthood in surrogacy arrangements.
Child Rights Considerations
The Child Rights Act prioritizes the best interests of the child. Any surrogacy arrangement that undermines the child’s welfare, identity, or legal status may face serious legal challenges.
The Predicament of Surrogate Mothers in Nigeria
In recent times, reports and investigations have exposed troubling realities surrounding surrogacy in Nigeria, particularly for surrogate mothers.
Exploitation and Economic Vulnerability
Many surrogate mothers come from economically disadvantaged backgrounds. Without legal protection, some are subjected to:
Unfair compensation arrangements;
Delayed or withheld payments;
Coercive contracts they do not fully understand.
Lack of Informed Consent
In the absence of regulation, surrogate mothers are sometimes inadequately informed about:
Medical risks involved;
Emotional and psychological implications;
Their legal rights during and after pregnancy.
Health and Medical Risks
Some surrogate mothers receive substandard medical care or are pressured to continue pregnancies despite serious health concerns, due to contractual or financial pressures.
Legal Uncertainty and Stigmatization
Surrogate mothers often face:
Unclear legal status after childbirth;
Social stigma and moral judgment;
Risk of abandonment if disputes arise with intending parents;
In extreme cases, disputes over custody or payment leave surrogate mothers without legal recourse.
The Way Forward: Legal and Policy Solutions
Enactment of Clear Surrogacy Legislation
Nigeria urgently needs comprehensive legislation that:
-Clearly defines and regulates surrogacy
-Protects surrogate mothers from exploitation
-Establishes legal parenthood for intending parents
-Sets minimum standards for medical and ethical practice
Regulation of Surrogacy Agencies and Clinics
Only licensed and regulated fertility clinics and agencies should be permitted to facilitate surrogacy arrangements, with oversight from relevant health and legal authorities.
Mandatory Legal Representation
Surrogate mothers and intending parents should each have independent legal representation to ensure informed consent and fair contractual terms.
Emphasis on Child Welfare
Any surrogacy framework must prioritize:
-The best interests of the child;
-Clear determination of legal parentage;
-Protection of the child’s identity and rights;
How LawHaven Solicitors & Advocates Can Help
At LawHaven Solicitors & Advocates, we provide careful, ethical, and client-focused legal guidance on surrogacy and assisted reproductive arrangements in Nigeria. Our services include:
-Advising intending parents on the legal risks and implications of surrogacy;
-Drafting and reviewing surrogacy agreements grounded in Nigerian contract and family law principles;
-Protecting the rights and interests of surrogate mothers through fair and transparent contractual arrangements;
– legal due diligence for fertility clinics and agencies;
-Advising on parentage, custody, and child rights issues arising from surrogacy;
-Representing clients in disputes arising from surrogacy arrangements;
Our approach is informed by compassion, legal precision, and a firm commitment to human dignity.
Conclusion
Surrogacy in Nigeria reflects both the promise of medical advancement and the dangers of legal silence. While it offers hope to many families, the lack of a clear legal framework leaves surrogate mothers particularly vulnerable.
Until comprehensive legislation is enacted, careful legal guidance remains essential. By approaching surrogacy with transparency, fairness, and respect for all parties involved, it is possible to reduce risk and protect human dignity.
LawHaven Solicitors & Advocates remains committed to guiding clients through these complex issues with professionalism and integrity.