Surrogacy and Reproductive Right: Navigating the Legal and Ethical Dimensions of Assisted Reproduction
By Oguichen Gwungmijana Festus
INTRODUCTION
Are children not the greatest gift of nature? What should be the fate of couples where nature fails? Should the dreams of millions of infertile couples all over the world who wish to have a child genetically related to them be left unfulfilled? No, assisted reproduction will be their panacea. In this piece, I shall consider the legal and ethical dimensions of assisted reproduction. However, before I go into the crux of the work, it would be proper, if not necessary, to shed some light on the key words like assisted reproduction, surrogacy, reproductive rights, and ethical. Assisted reproduction, as the name implies, is the process where individuals are assisted to conceive through the use of technology.
There are many types of assisted reproductive technology or methods, including in vitro fertilization (IVF) and surrogacy. Surrogacy is simply defined by Bryan and Garner Black’s Law Dictionary, p. 1582, as the process of carrying and delivering a baby for another person. It usually involves arrangements between the couple, another woman, and an agency or a medical facility. The couple are referred to as the “intended parents,” while the third woman is known as the “surrogate or surrogate mother.”
There are generally two types of surrogacy: traditional and gestational surrogacy. In traditional surrogacy, the surrogate mother provides the egg and is therefore genetically connected to the child, while in gestational surrogacy, the egg and sperm are provided by the intended parents or another different party. The surrogate mother only carries the fetus and gives birth to the child. She is therefore not genetically connected to the child. Surrogacy can also be “altruistic,” where the surrogate mother does not receive any financial compensation, or “commercial,” where the surrogate mother is compensated. Then reproductive rights are basically the rights of couples to determine the basic issues relating to there reproductive life without government or societal obstacles.
Finally, ethical means to be in conformity with moral norms, morally acceptable, right, or what good. It also has to do with the standards of right and wrong of an organization.
LEGAL DIMENSIONS OF ASSISTED REPRODUCTION
One fundamental legal aspect of assisted reproduction worth considering here is the issue of the legal framework for assisted reproduction. Despite the increasing resort to assisted reproduction, there is yet to be an adequate legislative framework for its regulation all over the world. Only a few countries, like England, the USA, South Africa, Greece, Russia, India, etc., have legal provisions for the regulation of assisted reproduction. Even in the aforementioned jurisdictions, the laws regulating assisted reproduction are inadequate, as there are still some legal gray areas or lacunas.
I would love to use Nigeria as a case study in that regard. In Nigeria, the law is almost practically silent on assisted reproduction, “surrogacy” in particular. Despite the fact that resorting to surrogacy is gaining momentum in Nigeria, Nigerian legislators have never dreamt about providing legislative relief for the unsuspecting parties. The only legislation that is often linked to surrogacy in Nigeria is Section 30 of the Child Rights Act, which provides that “no person shall buy, sell, hire, let on hire, dispose of, obtain possession of, or otherwise deal in a child.”. In my view, it cannot be safely concluded that the intention of markers in that section was to outlaw surrogacy or other assisted reproductive methods.
It is therefore safe to say that surrogacy and the use of other assisted reproductive technology are not crimes in Nigeria since they are not expressly prohibited in any written law.
The position in Nigeria is the same in most countries, more especially African countries, which have no legislation regulating surrogacy and other assisted reproductive methods.
The consequence of the absence of legislative from work for the regulation of assisted reproduction, including surrogacy contracts, is that parties involved in the surrogacy contracts are left in the wilderness with any legal protection and remedy where any of the parties failed to honor his part of the agreement. In this world of uncertainties, there are many unimaginable and unthinkable issues that may arise between the parties in surrogate contract or other assisted reproduction arrangements. Some of such issues that may arise are where the intended parents divorce before the child is delivered Who will claim paternity and custody of the child? What if the intended parents failed to complete the charges demanded by the surrogacy agency or medical facility? What if the surrogacy agency or medical facility were negligent in there operation? What if the surrogate mother dies due to complications from the pregnancy, What if the intended parents abandoned the surrogate mother during the period of pregnancy? Can she deny the intended parents the child. In fact, these issues are not unimaginable as early stated; they are actually reality.
For instance, on April 8, 2022, it was reported by the Premium Times newspaper as follows: A U.S.-based Nigerian couple has narrated how a surrogate mother absconded with their twins shortly after birth.The surrogate mother, Gift Solomon, had in a statement by her lawyer on Monday alleged that the couple, Shullam and Gamaliel Onyemaobi, abandoned their twins with her without financial support. This is just the tip of the iceberg on the legal issues that may arise in such arrangements. In truth, a lot has been happening, but the parties have been dying in silence due to legal uncertainty.
Another problem that may arise in a surrogacy contract is with respect to the citizenship of the child, more especially in a cross-border or inter-teritorial surrogacy contract. For instance, where the surrogate mother gives birth to the child in Nigeria to a foreign couple. By virtue of Nigerian law, although the child is born in Nigeria, he is not a citizen of Nigeria since none of his parents or grandparents are Nigerians. Acquiring citizenship might become a problem for the child, for instance, if the country of his intended parents does not confer citizenship on a child born outside the country or if surrogacy is prohibited in such a country. At this point, I shall now proceed to consider the ethical dimensions of assisted reproduction.
ETHICAL DIMENSIONS OF ASSISTED REPRODUCTION
As earlier stated, ethical is that which is in conformity with morality, what is approvable, or what is right or wrong. The question now is, “Is assisted reproduction particularly surrogacy in conformity with morality?” The above question might receive different answers by different persons based on their perspective of morality. Some might say that it is ethical, some might say that it is unethical, while some would not love to consider the ethical aspect of it and may argue that the act should be separated from morality. However, if you ask those categories of people who find no fault with assisted reproduction whether they would have wished to be born through assisted reproduction or whether they would love to get their children through that technology, the answer might hang on their lips.
Assisted reproduction is an artificial method of reproduction because it is performed through either artificial insemination or IVF. It is therefore unnatural. The human capacity and dignity of a child born through that means are thereby impaired. When nature has set a method or process of doing a particular thing, there is no better way of doing it.For instance, the parents of such a child will not be willing to disclose to the child how he came into existence. Also, children who are products of assisted reproduction may be subjected to discrimination or ridicule. For instance, a child gotten through IVR is referred to as a YouTube child.
Furthermore, assisted reproduction encourages immorality as someone may turn their body to commercial commodities. In addition, it encourages gay practices and marriage since gay couples will often resort to it as their means of reproduction.
CONCLUSION:
There are many dimensions of assisted reproduction that cannot be mentioned here due to word limitations. However, I believe some of the fundamental legal and ethical aspects of assisted reproduction had been considered in this work. It is my proposal that countries should provide an adequate legislative framework for the regulation of assisted reproduction within and across borders.
Photo Credit: Prime IVF Centre
About the Author
Oguichen Gwungmijana Festus is a 400-level law student of Ambrose Ali University
REFERENCES
Bryan and Garner Black’s Law Dictionary, 9th edition
Legal Framework for Surrogacy in Nigeria, by Miracle Eme, online at https://www.mondaq.com/nigeria/family-law, accessed Wednesday, 14th February.
The ethics of assisted reproduction, online at https://www.sciencedirect.com/journal/journal-of-reproductive-immunology, assessed on Wednesday, 13th.
Source: Sabilaw
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View Comments
It is a lovely read. I however disagree on the point that the human capacity or dignity of a child born through assisted means would be impaired, or that nature set a natural method of conception. Nope! Pray tell, how will their dignity be impaired, and by who? This line of thought would imply that anything that has not been in 'existence/discoverable' from the beginning of time is unnatural. If we go by the natural order of things, then only our legs should be used in transportation and all other means of transportation should be looked down on. In fact, I should begin to ascribe lesser dignity to anyone riding cars; they are assisted means of transportation. We should accept and consider several means of doing things without making one superior to the other. I hope we do not add the statistics of children birthed through 'assisted means' to the movement of desensitizing people from demonizing cesarean section.