Why the Surrogacy Bills are Illegal and Unconstitutional

By Sonnie Ekwowusi

You may be well aware that two surrogacy bills are currently pending before the House of Representatives in Abuja. The first bill, titled ‘A Bill to Protect the Health and Well-being of Women, Particularly in Relation to Surrogacy’ is sponsored by Hon. Uchenna Okonkwo of the Labour Party, representing Idemili/Idemili South Federal Constituency, Anambra State. Buy vitamins and supplements.

The second bill, titled ‘The Nigerian Surrogacy Regulatory Commission Bill’ is sponsored by Hon. Olamijuwonlo Alao-Akala of the All Progressives Congress (APC), representing Ogbomoso North and Oriire Federal Constituency. This bill has already passed a second reading in the House of Representatives.

These two surrogacy bills are related in the sense that they both aim to establish a regulatory framework for the practice of surrogacy in Nigeria.

I have carefully and meticulously studied the two extant bills alongside the 1999 Constitution and other existing laws in Nigeria, and I would humbly submit that both surrogacy bills are illegal and unconstitutional. Surrogacy is, essentially, the renting of the womb. In case you are unaware, surrogacy has become widely practised in Nigeria. In Nigeria, one can rent the womb of a girl for a meagre fee ranging between N250,000 and N500,000.

For example, late last year, a middle-aged man and a lady walked into our law firm and briefed us to draw up a surrogacy contract whereby the lady would carry and deliver a baby for a certain wealthy woman in Lagos. I wasted no time in showing them the exit door. Our law firm does not draft such illegal contracts no matter the high professional fee offered to us.

Surrogacy can be classified into traditional surrogacy and gestational surrogacy. Traditional surrogacy involves a woman providing her own egg, which is fertilised by artificial insemination, carried, and delivered on behalf of another person or couple. On the other hand, gestational surrogacy is the process where a person who did not provide the egg used in conception carries a fetus through pregnancy and gives birth to a baby for another person or couple. In this case, the gestational carrier is not genetically related to the child.

As I earlier stated, the two surrogacy bills being sponsored by the two federal legislators are illegal and unconstitutional under the following:

The Child Rights Act (which upholds the child’s dignity and right to identity). The TIPPEA Act (when involving payment or obtaining a benefit for babies). The Criminal Code (regarding fraud, unlawful custody, and exploitation).

The 1999 Constitution of the Federal Republic of Nigeria, The African Charter on Human and Peoples’ Rights.

Both commercial and altruistic surrogacy are illegal under Nigerian law.

Consent to engage in surrogacy does not excuse either party both are criminally liable.

Any agreement between two or more persons to commit surrogacy is itself a criminal offence commonly referred to as conspiracy,Two or more persons cannot contract or agree to do something that is against public policy or the law.

Regulation cannot override the existing laws against surrogacy without triggering legal contradictions, public backlash, and constitutional concerns. While the bill sponsored by Hon. Uchenna Harris Okonkwo distinguishes between commercial surrogacy and altruistic surrogacy—seeking to promote altruistic surrogacy while prohibiting commercial surrogacy—the bill sponsored by Hon. Olamijuwonlo Alao- Akala seeks to establish a surrogacy regulatory commission. However, Section 30(1) of the Child Rights Act 2003 outlaws both commercial and altruistic surrogacy.

The Child Rights Act is a federal law enacted to protect children’s rights across Nigeria. The long title of the Child Rights Act reads that the law is made “… to provide and protect the rights of a Nigerian child; and other related matters.” The use of the adjective Nigerian before the word child implies that the Act is intended to apply to all Nigerian children across the country.

However, the Constitution of Nigeria does not assign issues of child rights to either the Federal Government or Local Governments, leaving such matters under the jurisdiction of the State Governments.

This is one reason some states in Nigeria have gone on to enact their own Child Rights Laws, which are largely replicas of the federal Act. Unfortunately, some states in the northern part of Nigeria have failed or refused to enact such laws, even as children are subjected to early marriage and persistent rights violations.

On this note, surrogacy is a criminal offence in the Federal Capital Territory, Abuja, under the Child Rights Act, and also criminal in states that have enacted the Child Rights Laws. Consequently, surrogacy will not be criminal in states that have not enacted the Child Rights Law.

Section 30(1) of the Child Rights Act 2003, which incorporates the rights of the child as enshrined in the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child, outlaws both altruistic surrogacy and commercial surrogacy.

Section 30(1) reads: “No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child.” This provision clearly frowns upon the processes and procedures involved in surrogacy. At this point, it is important to list the elements present in every surrogacy arrangement and compare them with the verbs listed in Section 30 of the Child Rights Act to fully understand the impact of this law on surrogacy in Nigeria. While the phrase “buy, sell, hire, let on hire” clearly outlaws commercial surrogacy, the phrase “dispose of or obtain possession of or otherwise deal in a child” equally outlaws altruistic surrogacy.

Therefore, surrogacy is a criminal offence under the Child Rights Act, and both commercial and altruistic surrogacy are punishable by imprisonment for ten (10) years.

Even in cases of altruistic surrogacy, where surrogate mothers perform their role without receiving or charging any fee, it remains illegal under Nigerian law. For example, a biological mother of a woman experiencing difficulties with pregnancy may agree to become a surrogate and bear a child for her daughter.

Even in such altruistic arrangements—where, arguably, parties do not “buy, sell, hire, or let on hire,” but instead “dispose of or obtain possession of or otherwise deal in a child”—the act remains unlawful and illegal.

In other words, the Child Rights Act and Child Rights Laws in Nigeria criminalise all forms of the exchange of babies—whether commercial surrogacy involving money (buying, selling, or hiring of babies) or altruistic surrogacy (disposing of or obtaining possession of a child without payment).

To this end, surrogacy, whether commercial or altruistic, is unlawful in parts of Nigeria where the Child Rights Act or equivalent State Child Rights Laws are in operation.

Therefore, if parties in a surrogacy arrangement “buy, sell, hire, let on hire, dispose of, or obtain possession of or otherwise deal in a child,” such actions are criminal and punishable under the Child Rights Act and its equivalents in states across Nigeria.

No matter how unpopular a law may be, it remains valid until amended or repealed by the legislature.

Surrogacy under the TIPPEA Act Similarly, both commercial and altruistic surrogacy are outlawed under the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2003 (as amended in 2015).

Section 13 of the TIPPEA Act condemns all forms of human trafficking. It provides: Section 13(1) – All acts of human trafficking are prohibited in Nigeria.

Section 13(2) – Any person who recruits, transports, transfers, harbours, or receives another person by means of:

(a) threat or use of force or other forms of coercion;

(b) abduction, fraud, deception, abuse of power or of a position of vulnerability; or

(c) giving or receiving payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation of that person, commits an offence and is liable on conviction to imprisonment for a term of not less than 2 years and a fine of not less than N250,000.

Section 82 of the TIPPEA Act defines trafficking in persons to include: “…the giving or receiving of payments or benefits to achieve the consent of a person having control over another person or debt bondage for the purpose of placing or holding the person—whether or not in involuntary servitude (domestic, sexual or reproductive)—in forced or bonded labour, or in slavery-like conditions, the removal of organs, or generally for exploitative purposes.”

To be continued tomorrow.

Ekwowusi, a Lawyer, wrote from Lagos.

Source: Thenigerialawyer