Surrogacy as an Assisted Reproductive Technology: Legal and Ethical Considerations

By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

INTRODUCTION

The practice of surrogacy has garnered attention, particularly as efforts are made to establish international standards for its implementation. When it comes to the approach towards the concept of surrogacy, one would observe that there are different approaches to this concept. In Nigeria, for instance, the concept of surrogacy is surrounded by many controversies. Legal scholars influenced by ethics, morality and religion have expressed diverse opinions on the concept. Also, concerns as to the legal, ethical and even medical issues surrounding surrogacy in Nigerian society have been raised at various points and it is relevant to address some of these issues in this study.

There is no gainsaying that Nigeria is a society with diverse cultures which places a very high value on marriage and procreation. Therefore, having a child in marriage is seen as security in the marriage and widely celebrated as the pride of womanhood and a sign of fertility. Infertility, however, is common in sub-Saharan Africa due to several factors including sexually transmitted infections (STIs) among men and women. For instance, research on a rural Nigerian community shows that the overall prevalent rate of infertility was 30.3%, given indices of 9.25 for primary infertility and 21.1% for secondary infertility. 

The relevant question that begs an answer is “Are there any options for childbearing in the contemporary world in cases of infertility?”, and “What are the legal and ethical considerations for these options?” These questions will be well addressed forth wit.

CONCEPT OF SURROGACY

Surrogacy is a type of assisted reproductive technology (ART) where a woman carries and gives birth to a child for another person or couple, often referred to as intended parents. It can be said to be an arrangement whereby a woman consents to take up responsibility for the pregnancy-related labour and delivery of a child on behalf of another person or couple, normally referred to as the commissioning parents. It is a situation where a woman (third party) carries a pregnancy for the commissioning parents and hands the child over to the commissioning parents after its delivery. In the late 1970s the first recorded case of assisted reproduction through surrogacy was contested in the English courts and this development has led to several debates on surrogacy as a means of reproduction, with two primary types identified: traditional and gestational surrogacy.

In traditional surrogacy, the surrogate mother provides her egg, which is then fertilized by artificial insemination. She carries the fetus and gives birth to a child for another person. This means that the surrogate mother contributes genetically to the conception and is both the biological and gestational mother of the child. 

On the other hand, gestational surrogacy involves the surrogate becoming pregnant through a process called In Vitro Fertilization (IVF). In this process, an embryo is created in the laboratory and transferred to the surrogate’s uterus. As a result, she will not be genetically related to the child, per se.

LEGAL FRAMEWORK FOR SURROGACY IN NIGERIA

In Nigeria, there is currently no comprehensive legal framework regulating surrogacy. Consequently, while surrogacy lacks explicit regulatory guidance, the practice is equally not expressly prohibited in Nigeria. Hence, parties who engage in surrogacy cannot be said to have committed any crime. However, this absence of clear regulation makes it challenging to precisely define the legal status of the child’s parents and the contractual rights and responsibilities of all parties involved in the surrogate agreement. 

In the absence of any legislation governing surrogacy in Nigeria, many ART clinics in the country operate based on the guidelines set by the Human Fertilization and Embryology Authority (HFEA) of the United Kingdom. 

Pointedly, the Nigerian Law Reform Commission has recommended that any child born to a woman as a result of artificial insemination or embryo implantation while she is in marriage should be legally recognized as a child of the husband. Additionally, in cases of surrogacy, the Commission suggests that the intended parents, also known as commissioning parents, should formally adopt the child, regardless of whether the child is biologically related to them. This recommendation aims to prevent potential complications, such as the surrogate mother reclaiming the child, as has occurred in some instances, as this has happened in some cases. In the American case of Re Baby M, a woman, Mary Beth Whitehead, entered into a contract with William Stern, whose wife, Elizabeth, had multiple sclerosis and feared she could endure severe health problems were she to become pregnant. Ms. Whitehead agreed to be inseminated with Mr. Stern’s sperm, carry the pregnancy to term and then yield parental rights to the more affluent Sterns. However, when she gave birth to the baby, she decided to forgo the contract sum and keep the baby to herself. The Sterns sued. Though the trial Court held in their favour, the New Jersey Supreme Court reversed that decision. It invalidated the surrogacy contract as an affront to public policy. Nonetheless, it gave custody to the Sterns.

In 2012, a Bill for the establishment of a Nigerian Assisted Reproduction Authority was presented before the National Assembly and was read the second time, particularly on 2^nd May 2012. However, the Bill was not passed into law as it did not enjoy the support of the majority of the Nigerian National Assembly.

It is important to note that while there is no comprehensive legislation specifically regulating surrogacy in Nigeria, certain provisions within existing laws, such as the National Health Act of 2014, may address aspects of surrogacy to some extent. One relevant provision on this subject matter is as follows:

“(1) A person shall not

(a) manipulate any genetic material, including genetic material of human gametes, zygotes or embryos; or

(b) engage in any activity including nuclear transfer of embryo splitting for the purpose of the cloning of human beings;

(c) import or export human zygotes or embryos.

(2) A person who contravenes or fails to comply with the provision of this section commits an offence and is liable on conviction to imprisonment for a minimum of five years with no option of fine.”

The effect of this section is that it prohibits genetic manipulation, and bans human cloning, thereby making it illegal to create a human being through cloning. Additionally, it restricts the import and export of embryos. Most significantly, it establishes criminal penalties for anyone who contravenes the provision of that section.

There are various reasons people opt for surrogacy. One of the reasons, as can be deduced from what has been discussed so far, is infertility. Medical conditions such as recurrent miscarriages, age-related infertility and other medical conditions can be a reason to pursue surrogacy. Furthermore, in contemporary society, some individuals may choose to become “single parents”, and surrogacy provides a means for them to indirectly have children.

However, despite these reasons, there are numerous legal and ethical issues surrounding surrogacy that warrant examination.

LEGAL CONSIDERATIONS OF SURROGACY

1. Absence of a Legal Instrument Regulating Surrogacy: In Nigeria, the absence of a comprehensive law regulating the practice of surrogacy is an issue in itself, as many questions concerning the concept are left unanswered. There is no provision as to the degree of how surrogacy is permitted in the country or whether it is prohibited entirely, so as to render the contract of surrogacy void ab inito. This poses a challenge to the concept of surrogacy in the country.
2. Issues on the Legal Parentage of the Child: Flowing from the above, it must be stated that it is the law which ought to determine the parental rights of all parties to a surrogacy contract, including the surrogate mother and the commissioning parents. In the absence of a law, it will be difficult to ascertain the legal rights and obligations of parties to a surrogacy contract.
3. Uncertainty of the Weight of the Surrogacy Agreement: There is uncertainty as to the effect and weight of a surrogacy agreement in Nigeria. Being a contract and in the absence of any legislation, it may only be regulated by contract law. This notwithstanding, the fact remains that ascertaining the effect and weight of the agreement is vague. To what extent can it be enforced in law? These are questions baffling the minds of the authors on surrogacy which are yet to be answered by the law.
4. Issues of Custody: A child born of surrogacy may be faced with issues on custody, at maturity age. In Nigeria where only two parents are recognized to be the parents of a child, a child born of full surrogacy is likely to face the challenge of determining who his or her actual parents are. Thus, the principle of the best interest of a child is defeated in some cases of surrogacy.

ETHICAL CONSIDERATIONS OF SURROGACY

1. Jeopardy to the Natural Order of Procreation: The objections in principle to the practice of surrogate maternity are based on the fact that the natural order of reproduction is not used for procreation. It is either performed through artificial insemination or the IVF method. These practices sacrifice the natural reproductive capacity of the human being as a living creature.
2. Exploitation of the Female Body: Some scholars have viewed surrogacy as a means through which the female body is exploited against their own will. Furthermore, the poor women of third-world countries are used as a tool to meet the reproduction needs of Western women who are infertile or postpone their reproductive plans for their careers. The concept of “exploitation of the female body” is an ethical issue because it raises concerns about the potential mistreatment and commodification of women’s bodies, particularly the surrogate mothers. Women’s bodies may be viewed as mere vessels for reproduction, rather than as individuals with autonomy. Also, surrogate mothers may be manipulated or pressured into agreements they do not fully understand, especially when they are uneducated. 
3. Impairment of the Marriage Relationships of the Couples: This is one of the issues of surrogacy. It tends to weaken the marriage of couples who have contracted a surrogate mother for surrogacy. For instance, a surrogate mother may develop warm feelings for the sperm donor, or the male spouse may attribute more value to the surrogate mother for the perceived fertility, as against his wife’s infertility. Also, the introduction of ART, surrogacy in this case, may lead to separation of procreation and sex between the couples, and this can affect the conjugal rights of marriage which couples may have benefited from.
4. The Right to Dignity of the Child may be Hampered: The Constitution of the Federal Republic of Nigeria 1999 (as amended) provides for the right to dignity of persons. Several questions can be raised based on this heading alone. Questions such as how would a person born of surrogacy feel when he or she comes of age and learns of the circumstances of his or her birth? Would they see it as degrading to their personality? Would they see the acts of their parents as inhumane? Can it be said that their consent was sought before they were created through an artificial process? When these questions are raised by persons born through surrogacy, one would begin to wonder if such persons can be able to accept themselves as they are, in comparison to persons who are born through natural order.
5. Selective Reduction: Selective reduction or termination is said to satisfy the criteria of enabling pregnancies to continue with the least harm and most benefits to all parties involved. It is the process of reducing or eliminating the number of embryos formed for the purpose of pregnancy. This process raises ethical issues for consideration because it is believed that it goes against the sanctity of human life. It has been argued that human life begins at conception. Thus, every embryo or fetus has an inherent right to life. That being the case, selective reduction would be seen as violating this right to life, in contrast to the provision of the CFRN.

CONCLUSION

Surrogacy has been shown to be an option to natural procreation in the case of infertility. However, the legal and ethical issues surrounding surrogacy as an Assisted Reproductive Technology (ART) are complex and multifaceted. While there are potential benefits to individuals or couples seeking to build families or for other reasons of surrogacy, there are also significant legal questions which are yet to be answered for the purpose of clarity and ethical considerations including the exploitation of the female bodies inter alia.

Thus, lawmakers, healthcare professionals and the society as a whole must engage in thoughtful discussions and enact comprehensive legislation to protect the rights and well-being of all parties to surrogacy, while also ensuring strict measures to curb the abuse of this concept.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Medical Law and Practice, and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng   

CONTRIBUTOR: VICTOR OBONG ATANG, ESQ. 

Victor is a member of the Dispute Resolution Department at OMAPLEX Law Firm. He also holds commendable legal expertise in Medical Law and Practice.

He can be reached at victor.atang@omaplex.com.ng