Assisted Reproductive Technology (ART) in Nigeria: Legal, Ethical and Policy Perspectives

By Success Oghosa Osaretin

Introduction

Infertility affects a significant portion of Nigeria’s population, with estimates suggesting that between 20–30% of couples face reproductive challenges (Okonofua, 2003). In a society where childbearing is culturally and socially prioritized, infertility often carries stigma and emotional distress. Assisted Reproductive Technology (ART) has emerged as a medical solution. However, while ART is widely practiced in Nigeria, it operates in a legal vacuum, raising questions about parentage, custody, inheritance, and ethics.

Meaning and Scope of ART

Assisted Reproductive Technology (ART) comprises medical procedures designed to achieve pregnancy through manipulation of gametes or embryos outside the human body. Common forms practiced in Nigeria include:

• In Vitro Fertilization (IVF) – fertilization outside the womb.

• Artificial Insemination (AI) – direct introduction of sperm into a woman’s uterus.

• Intracytoplasmic Sperm Injection (ICSI) – injection of sperm into an egg.

• Surrogacy – traditional or gestational arrangements where another woman carries the child.

• Gamete Donation – third-party egg or sperm contributions.

• Cryopreservation – freezing of gametes or embryos for later use.

Legal Framework in Nigeria

Unlike other jurisdictions, Nigeria lacks a specific ART statute. Regulation is instead piecemeal:

1. Medical and Dental Practitioners Act, Cap M8 LFN 2004 – governs medical practice generally but does not address ART.

2. Code of Medical Ethics in Nigeria (2008) – sets broad ethical standards but omits detailed ART guidance.

3. Child’s Rights Act 2003 (CRA) – provides child welfare protections (Sections 14 and 277), but does not anticipate ART scenarios.

4. Constitution of the Federal Republic of Nigeria 1999 (as amended) – guarantees the right to dignity (Section 34), privacy and family life (Section 37), and health (Section 17(3)(d)).

5. Customary and Islamic Law – often frown upon third-party reproductive intervention, emphasizing biological descent.

Because of this vacuum, ART is largely self-regulated through professional associations like the Association for Fertility and Reproductive Health (AFRH), whose guidelines lack statutory force.

Key Legal and Ethical Issues

(a) Parentage and Custody

By common law, the maxim mater semper certa est (“the mother is always certain”) applies. Thus, in the absence of legislation, the surrogate or birth mother is deemed the legal mother, regardless of genetic contribution (Re X (A Child) [2014] EWHC 3135, UK case). This creates uncertainty for intended parents in Nigeria.

(b) Enforceability of Surrogacy Agreements

Nigerian courts may consider surrogacy agreements void for public policy reasons, similar to the stance in Baby M Case (1988) 537 A.2d 1227 (New Jersey, USA), where the court invalidated a surrogacy contract but upheld custody in the best interest of the child.

(c) Inheritance Rights

Under Nigerian succession law (e.g., Administration of Estates Law of Lagos State), children born via ART may face disputes over inheritance if conceived using donor gametes. The absence of statutory clarity on legitimacy and recognition of ART-born children deepens uncertainty.

(d) Donor Anonymity and Consent

Nigeria lacks rules governing donor anonymity or a child’s right to know their genetic heritage, an issue recognized in other jurisdictions (see Re G (Children) [2006] UKHL 43, UK).

Comparative Legal Analysis

• United Kingdom: The Human Fertilisation and Embryology Act 2008 regulates ART. Surrogacy is permitted only on an altruistic basis, and parental rights are transferred via a Parental Order.

• South Africa: The Children’s Act 38 of 2005 requires court approval of surrogacy agreements before conception, ensuring enforceability and child protection.

• India: The Surrogacy (Regulation) Act 2021 permits only altruistic surrogacy, banning commercial arrangements.

• France and Germany: Prohibit surrogacy entirely on moral and public policy grounds.

These jurisdictions demonstrate the need for statutory clarity balancing innovation with ethical and cultural concerns.

Way Forward for Nigeria

Nigeria urgently needs a comprehensive Assisted Reproductive Technology Act to:

1. Define ART procedures and their legality.

2. Clarify parental rights and custody rules.

3. Recognize surrogacy agreements (altruistic or commercial) under regulated conditions.

4. Guarantee inheritance and equal legal status for ART-born children.

5. Establish a regulatory authority to license and monitor fertility clinics.

6. Incorporate safeguards to prevent exploitation, protect women, and uphold children’s rights.

Conclusion

Assisted Reproductive Technology represents a vital lifeline for Nigerian families confronting infertility. Yet, in the absence of legislation, ART is fraught with uncertainties in parentage, custody, inheritance, and ethics. Comparative jurisdictions show that clear statutory frameworks are essential for balancing reproductive rights, medical innovation, and cultural values. Nigeria must therefore enact comprehensive ART legislation to ensure legal certainty, protect vulnerable parties, and secure the rights of children born through these technologies.

This article addresses Surrogacy as a form of ART, to be continued in our next article.

References

• Okonofua, F.E. (2003). Infertility in Sub-Saharan Africa. In: Contemporary Obstetrics and Gynaecology for Developing Countries. Women’s Health and Action Research Centre, Benin City.

• Constitution of the Federal Republic of Nigeria, 1999 (as amended).

• Child’s Rights Act, 2003.

• Medical and Dental Practitioners Act, Cap M8, LFN 2004.

• Code of Medical Ethics in Nigeria, 2008.

• Human Fertilisation and Embryology Act, 2008 (UK).

• Children’s Act, 2005 (South Africa).

• Surrogacy (Regulation) Act, 2021 (India).

• In re Baby M (1988) 537 A.2d 1227 (New Jersey Supreme Court).

• Re G (Children) [2006] UKHL 43.

• Re X (A Child) [2014] EWHC 3135 (Fam).

Success Oghosa Osaretin is a Lawyer//Author//Child Protection Advocate

Contact Info:

LinkedIn: Success Oghosa Osaretin

Email: oghoslegal@gmail.com

Source: BarristerNG