Enforceability of Surrogacy Contracts: A Family Law Perspective

INTRODUCTION

Today, many people are turning to surrogacy as a way to have children, especially when natural pregnancy isn’t possible due to health or other reasons. Surrogacy can bring hope to couples and individuals, but it also raises many legal questions, one of which is:

If there is a written agreement between the surrogate mother and the people who want the child (intended parents), will the court enforce it if something goes wrong?

In this article, we will explain that question in detail and other legal crises of the concept.

WHAT IS A SURROGACY CONTRACT?

A surrogacy contract is a written agreement between a woman who agrees to carry a baby (the surrogate) and the people who want the baby (the intended parents). This agreement usually includes:

• Who the real and legal parents will be after the child is born?
• Who will pay for medical care and other costs?
• What happens after the baby is born?
• What happens if the surrogate or parents change their minds?

There are two major types of surrogacy. They are:

• Altruistic Surrogacy: Here, the surrogate is not paid, except for medical expenses.
• Commercial Surrogacy: The surrogate is paid a fee, in addition to medical costs.

LEGAL STATUS OF SURROGACY CONTRACTS GLOBALLY

Across the world, surrogacy laws vary significantly:

• In the United Kingdom, surrogacy contracts are not enforceable by law. They are viewed as informal understandings. The surrogate is the legal mother.
• In the United States of America, enforceability depends on the state. States like California recognise and enforce them, while others prohibit them.
• India and Thailand have banned commercial surrogacy due to exploitation risks.
• South Africa legally recognises and enforces altruistic surrogacy agreements under strict regulations. That is, it is allowed if a court approves it before pregnancy.

Is Surrogacy legal in Nigeria?

Presently, Nigeria does not have a specific law that regulates surrogacy, even though it is happening in fertility clinics, but it’s not clearly guided by law. The parties often draw up a private contract to bind themselves.

If anything goes wrong, there is no strong legal rule or judicial precedent to say who is right or wrong. However, the court may take a risky route by treating the agreement like any other private contract.

The implication of this is that while the agreement entered into by the parties is morally binding, it may not withstand legal scrutiny if challenged in court, especially if a dispute arises post-birth.

Why Surrogacy Contracts may be hard to enforce?

Even if the contract is written and signed, it may not be fully accepted or enforced in court for the following reasons:

1. Who is the “Real Parent”?

In the Nigerian legal setting, the woman who gives birth is considered the legal mother, even if the child is not biologically hers. So, if the surrogate wants to keep the child, the intended parents might face a legal battle.

2. The Child’s Best Interest

Family courts always focus on what is best for the child, not just on what the adults agreed to. If the agreement goes against the child’s welfare, courts may refuse to enforce it.

3. Public Morals and Exploitation

Some judges may believe commercial surrogacy (where the surrogate is paid) is morally wrong or exploits poor women, especially if done secretly or without proper consent. This can make a court cancel the agreement.

4. Is the Contract Fair and Voluntary?

If the surrogate didn’t fully understand the agreement or was pressured into it, the contract may not be valid.

What can be done to make it safer?

Until Nigeria creates proper laws on surrogacy, both lawyers and parents may take the following steps to protect everyone involved:

1. Draft a clear and detailed contract that will cover all the parts of the agreement.
2. Making sure that everyone (both parties) understands. This can be done if both parties have their own lawyer.
3. The intended parents can do a formal adoption after birth. This helps transfer legal parent rights to the intended parents.

CONCLUSION

Surrogacy can be a beautiful way to build a family. Without proper laws in Nigeria, surrogacy contracts are risky. Even if there’s an agreement, courts may not enforce it, especially if it goes against what is best for the child or seems unfair.

Written by:

SALAWA ABIKE SULE-AZEEZ

Legal Practitioner

08104746175, 09051587201

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Source: thenigerialawyer