In this interview with Ekpedeme Umoh of The News Chronicle, Serah Sanni, the Deputy Head of Chambers at Tunde Ogunsakin & Co-Legal Practitioners, sheds light on the legality surrounding surrogacy with the spotlight on Nigeria
Have you ever wondered why baby factories exist?
Apart from the gory details, stigmatization could be listed as one of the major reasons for its existence.
The stigmatization of infertility in Nigeria has led to high demand for babies by couples who are unwilling to participate publicly in adoption or surrogacy procedures due to the stigma associated with it.
We’ve told you about the medical aspect of surrogacy, now let’s get into the legalities.
First of all, there is no legal framework regulating surrogacy in Nigeria, if there was, it’ll possibly curb the menace of baby factories, amongst other vices.
What we have is a simple contract that takes place between the intended parents and the surrogate.
The real question is, is this contract enforceable, is it legal?
Serah Sanni, the Deputy Head of Chambers at Tunde Ogunsakin & Co-Legal Practitioners gives us a lowdown.
‘Certain factors vitiate a contract and they include fraud, misrepresentation, illegality, and of course we have where the contract is against public policy. If all these are satisfied, there is no basis for one to void a contract.
‘For anything to be illegal or an offence, it must have been stated by a law that prescribed it and prescribed the punishment for it as well. In this case, there is no existing law, therefore, it is not considered illegal.
‘Why do we want to know if a surrogate agreement is legally enforceable? Why do we do agreements? This is because one person might not keep to her terms of the agreement and on that basis, there would be a need to take the documents to the court for enforcement. The major issue that can come up here is that of public policy.
‘In Nigeria, we haven’t tested the law regarding public policy in this area. Public policies are standards that are recognized by the government and by the people of a society, to regulate behavioural patterns. It is based on background, culture, religion and sometimes the general reasoning of people in the society. So when the matter is brought before a court, factors surrounding the agreement would be considered, like, is contracting a woman to birth a child for another woman in line with the public policy of the nation? It most likely would be ruled against public policy, and that could vitiate the contract.
‘This is not to say that no contracts are existing between people that indulge in surrogacy. There are agencies that help in organizing the agreements. And, for this, we need legislation.
‘Without adequate regulation and monitoring, abuse and exploitation can occur.
‘The ideology behind surrogacy is humanitarian-based, therefore the dignity of the human person should be respected.
‘Now, some surrogacy arrangements are more commercially inclined and with the rate of poverty in Nigeria, people tend to toe the line of turning it into a commercial enterprise which should not be the case.
‘I believe if there is a regulation in place, certain factors would be reviewed before one can present herself as a surrogate or propose to be one.
‘However, I have reservations as to our maturity in developing such regulations in light of the current situation of the country. There are so many things that need to be put in place. In more advanced jurisdictions like the UK, there is the Surrogacy Arrangement Act of 1985, they also have the Human Fertilization and Embryology Act of 1990. Now, this Human Fertilization and Embryology Act frowns at payments. The surrogate is to be supported and catered for but not paid.
‘According to the Act, a surrogate mother is believed to be the biological mother. Within six weeks or months of delivery, the intended parent can apply to the court for a parental order. At this point, the surrogate mother would have some respect, recognition and would willingly hand over the child.’
So what happens in a case where the surrogate mother doesn’t want to give up the child?
‘If one person breaches the agreement, which most likely, the surrogate mother now feels so attached and cannot release the baby anymore, whether you can enforce such agreement in court is still a question.
‘In this case, the intended parent might have to lose the child. That is the risk. So, you see where legislation comes in? The legislation would help put everybody in check. Such that, there would be a department that would deal with the surrogates, there would be a department that would deal with intended parents. The truth is when a surrogate is willing and not tied to pressure or any financial inducements, there is a low percentage of the likelihood that such surrogate would not release the child. It’s going to be in a very rare situation.
‘However, it’s good for us to consider that possibility. Just like the adoption process, once all parties have gone through the procedures and satisfied all the requirements, the biological parents cannot show up after a while to take the child back.
Speaking further, Barr. Sanni mentioned a case where an agency was being flagged, threatened to shut down or face being charged with child trafficking.
‘That shouldn’t be the case because if you look at the law regulating child trafficking, the financial exchange is key. If we had legislation for assisted reproductive technology (ART), one would not be confused for the other.
There are a lot of other agencies successfully operating in the country, they are not solely commercial but there’s some kind of remuneration to it.
The lack of a legal framework in Nigeria also implies that the rights of children born through surrogacy agreements may be violated. Two Bills are however awaiting passage into law.