Surrogacy: Absence of laws spurs unethical practices in Nigeria (3)

This is the third and final part of this report. Read the first part here and the second part here.

Laws and grey areas

For many vulnerable women on the path of surrogacy in Nigeria, the journey is fraught with half-truths, hearsay and a conditioning of the mind that leads them to discount personal health and future complications. This brings the question: is there a legal framework protecting them? Surrogacy may not be illegal in Nigeria, but the laws are either non-existent or ambiguous, creating room for exploitation and illegal practices to thrive.

For instance, Section 30 of the Child Rights Act (2003) prohibits the buying, selling, hiring or dealing in children. Also, the Trafficking In Persons (Prohibition) Enforcement and Administration Act also condemns all forms of human trafficking.

A lawyer, Onyekachi Umah, said the law by implication prohibits the practice of surrogacy.

“Section 30 of the Child Rights Act is against surrogacy in Nigeria. The section reads; “No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child”.

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He said the provision clearly frowns at the processes and procedures of surrogacy, even without mentioning the term “surrogacy”.

Also, Oluyemi Orija, the Founder of Headfort Foundation, a pro-poor legal firm, noted that “in Nigeria, there are no specific laws regulating Assisted Reproductive Technology.”

She said the closest law is the Assisted Reproductive Technology [ART] Bill 2016, which has not been passed into law by parliament. However, the situation is slightly different in Lagos, she said.

“Lagos State on the other hand passed a guideline on assisted Reproductive Technology in 2019, leaving the remaining 35 states of Nigeria and the FCT with laws on surrogacy or Assisted Reproductive system. It is important to state that surrogacy is not a crime in Nigeria, and neither is there any law providing for it,” she added,

Timothy Adewale, a lawyer and the Executive Director of the Centre for Health Equity and Justice (CEHEJ), an NGO that promotes reproductive health rights, decried the absence of a law regulating ART in the country.

“We do not have laws that regulate ART in Nigeria, whether it is egg donor, IVF or surrogacy. It is more or less left to the dictates of those who are involved, and we have seen cases of manipulations of different kinds,” he said.

“Normally, the National Assembly is supposed to pass a bill and when it has been signed into an Act, it then trickles down to the states for domestication. For instance, the National Health Act covers the issues of using humans and foetuses as scientific research but doesn’t specifically say anything about ART. There is a need for a law to regulate ART at the national level because if it is well guided in a state, people can go to another state to do whatever they like,” the CEHEJ director said.

Absence of Law: Opportunity for illegal practices

Mrs Odukoya of the ParahFamily Foundation agreed that the absence of a legal framework has led to the prevalence of sharp practices in some fertility clinics and some surrogacy agencies running baby factories.

“You cannot rule out sharp practices since there are no guiding principles. I don’t know any hospital that is involved in illegality but there are a lot of baby factories under the guise of fertility clinics. Some clinics would even give injections to women that will make their stomachs feel bloated but they are not pregnant, and at the end of the day, they would just give out a baby to such a woman and the woman might have thought she did IVF,” she added.

Mrs Orija said she has not had first-hand experience of any illegality in fertility clinics. But, she said, “Nothing is impossible. I have heard stories where the oocytes (eggs) of young ladies are collected for a meagre amount of money by fertility clinics without proper sensitisation on the consequences to the girls. Girls who are in dire need of money continually donate eggs, with no proper documentation, medical care after donation and sensitisation. These to me are inappropriate.”

International practices and guidelines

Well-regulated surrogacy practices focus on transparency, informed consent, and the protection of the surrogate’s physical and emotional well-being. In countries with such laws, they balance the interests of intended parents, surrogates, and donors. For instance, in Australia, Ukraine, Mexico and Colombia where surrogacy is legalised, the surrogates do not get financial compensation outside of being reimbursed for medical and other ‘reasonable’ expenses. Perhaps, if surrogates are not rewarded handsomely in Nigeria too, women would not consider it as a survival option.

“It is important to note that ART has come to stay and it should be regulated in line with global best practices,” Mr Adewale warned.

Adopting a better approach to surrogacy

Mrs Odukoya highlighted the importance of counselling for couples seeking alternative fertility options so they could make informed decisions and not be dragged into illegality. She said counselling, regulation and collaboration among key agencies are vital to improving the fertility sector in Nigeria. Again stressing the need for legislation, she said, “Surrogacy is not a government-legalised option in Nigeria but most of the things we do, we don’t have legal backing to it. There are individuals who make legal arrangements, between the surrogate mother and the hospital involved. But this cannot be taken to court if anyone defaults.”

“In Parah, when we bring our members together, we bring all these options to the table, so they know why they should select a specific option, and they are better informed about all it entails,” she added.

She believes that the government needs to show more commitment to the lives of citizens by making laws to guide surrogacy and other assistive fertility methods in Nigeria.

“There is a need for collaboration between surrogacy agencies, hospitals and the government to establish ethical practices and regulations in the fertility space. The current lack of government attention and involvement allows unethical practices to flourish,” she explained.

Mrs Odukoya said some surrogacy agencies do not have proper accreditation and hide under the hospital. “There should be continuous monitoring of health facilities so that there can be a clampdown on those who are involved in illegality.”

READ ALSO: INVESTIGATION: Inside murky waters of surrogacy and rise of baby factories in Nigeria (2)

Even with relevant laws, it is important that transparency, ethical standards, and proper medical protocols are enforced to ensure the safety and dignity of surrogates and intended parents alike. Only then can Nigeria move towards a surrogacy industry that operates within legal boundaries and upholds ethical standards, providing hope for couples without exploitation of innocent women.

“The creation of laws to regulate how assisted reproductive technology is carried out is essential to prevent shady practices like baby-making factories, prostitution, human trafficking, illegal semen, and egg harvesting agencies amongst others,” Mrs Orija said.

Editor’s Note: All the names of the donors in the first two parts of this story have been changed to protect their identities.

This report was supported by the Wole Soyinka Center for Investigative Journalism (WSCIJ) under its Report Women! Female Reporters Leadership Programme (FRLP), champion building edition.