Analysis of the Nigeria Surrogacy Regulatory Commission Bill (2024)

Contributor: Jesutofunmi Animasaun

Introduction

Over the years, different countries in the world have had diverse views and approaches on the concept of surrogacy.^[1] Surrogacy is a concept that is yet to be widely recognized and accepted in Nigeria^[2] because of the diversity in beliefs and norms, which are influenced by factors like religion and culture. As a form of Assisted Reproductive Technology (ATR), it is generally considered to be a treatment for infertility, wherein a woman known as the surrogate mother becomes pregnant on behalf of another woman referred to as the commissioning mother and subsequently delivers the baby for her.^[3] Thus, surrogacy constitutes an arrangement wherein a woman, acting as a third party, bears a pregnancy on behalf of the intended parent(s) and relinquishes the child to them upon delivery.^[4] Notably, the practice of surrogacy has garnered considerable attention, prompting initiatives to establish international frameworks aimed at ensuring best practices in the field.^[5]

The House of Representatives recently passed a Bill seeking to establish the Nigeria Surrogacy Regulatory Commission (NSRC) for monitoring and supervision of surrogacy arrangements in Nigeria.^[6] The Bill aims to provide for the registration, regulation and monitoring of surrogacy agencies in Nigeria and related matters.^[7] In 2012, a similar Bill, which is the Bill for the establishment of a Nigerian Assisted Reproduction Authority, was presented before the National Assembly and was read the second time on 2^nd May, 2012.^[8] However, it was not passed into law as it did not enjoy the support of the majority of the National Assembly.^[9]

Finally, it is imperative to undertake a critical analysis of the NSRC Bill, vis-à-vis the United Kingdom Surrogacy Laws putting into consideration International Best Practices on surrogacy.

Establishment of the Nigeria Surrogacy Regulatory Commission Bill

The Surrogacy Bill 2024 basically seeks to establish the NSRC for the monitoring and supervision of surrogacy arrangements in Nigeria and to provide for the registration, regulation and monitoring of surrogacy agents in Nigeria. This is lucidly spelt out in the long title of the Bill.

Thus, the Bill introduces the NSRC,^[10] which shall be a body corporate with perpetual succession.^[11] The body will be responsible for the following functions:

1. establishing and maintaining a Surrogate Registry in the Federal Capital Territory and in each state of the Federation;
2. regulating and overseeing all matters relating to surrogacy in Nigeria; and
3. advising the Minister on policies and regulations governing surrogacy.^[12]

Key Provisions of the Bill

1. Surrogacy Agency: The Bill provides that no person or entity shall operate as a surrogacy agency without being registered with the Corporate Affairs Commission (CAC) and the NSRC.^[13] Though the Bill did not expressly define what a surrogacy agency is, it appears to be an organization that facilitates the surrogacy process, acting as an intermediary between intended parent(s) and surrogate mothers. The Bill further provides that every registered surrogacy agency shall establish and maintain a private registry of all parties involved in surrogacy arrangements facilitated by the agency.^[14]

The private registry is expected to include such information as the names, addresses and contact details of the surrogates, intended parent(s) and any other person relevant to the surrogate arrangement.^[15] Furthermore, the Bill proposes a penalty of #1,000,000.00 (one million naira) or imprisonment for a term not exceeding 5 years or both for any person or entity that operates as a surrogacy agency without registering with the NSRC.^[16]

1. Commercial Surrogacy: The Bill seeks to prohibit commercial surrogacy in Nigeria.^[17] Thus, no person or entity is expected to offer or receive any payment, benefit or consideration, whatsoever, in exchange for arranging a surrogacy, acting as a surrogate or entering into a surrogate arrangement.^[18] Failure to adhere to this provision carries with it a sanction to be prescribed by the Act.^[19] Thus, going contrary to the provision amounts to illegality. However, this may present a challenge, as some women may be reluctant to act as surrogates due to the anticipated expenses they may incur in the course of being involved in the surrogacy.
2. Eligibility for Surrogacy: The Bill is to the effect that the only persons eligible for surrogacy in Nigeria are persons who have been medically certified as unable to conceive or carry a child to term, whether they are married couples^[20] or single persons.^[21] Thus, persons other than those medically certified as unable to conceive or carry a child to term are ineligible for surrogacy in Nigeria.
3. Minimum Age Requirement: The minimum age for a person to act as both a gestational or genetic surrogate is 21 years. Notably, gestational surrogacy involves the surrogate becoming pregnant through a process called In Vitro Fertilization (IVF).^[22] In this process, an embryo is created in the laboratory and transferred to the surrogate’s uterus. Consequently, she will not be genetically related to the child.^[23]

On the other hand, genetic surrogacy, also referred to as traditional surrogacy, involves the surrogate mother providing her own egg, which is then fertilized with the intended father’s sperm or donor’s sperm, by artificial insemination.^[24] The surrogate then carries the fetus and gives birth to a child on behalf of the intended parent(s).

Importantly, the Bill proposes a penalty of #500,000.00 (five hundred thousand naira) or imprisonment for a term not exceeding 3 years or both for any person who contravenes this provision.^[25]

1. Consent of Parties: The Bill is also to the effect that a surrogate agreement must be made voluntarily and based on the informed consent of all the parties.^[26] It must also be made in writing and signed by all parties involved.^[27] Additionally, it must be registered with the NSRC before the commencement of the surrogate arrangement.^[28] It appears that this provision is relevant as it will enable the NRSC to ensure that the agreement is in compliance with the law.
2. Medical Evaluation: The Bill makes a vital provision to the effect that before any surrogate and the intended parent(s) enter into a surrogate arrangement, they must undergo a medical and psychological evaluation to assess their physical and mental suitability for the surrogacy process.^[29] The essence of this provision is to ensure that both the surrogate and the intended parent(s) are medically and psychologically fit to participate in the surrogacy process. By mandating these evaluations, the provision seeks to safeguard the welfare of all parties involved, as well as to prevent potential physical or mental health complications that may subsequently arise.
3. Notarization: The Bill makes it mandatory for every surrogacy arrangement entered into in Nigeria to be notarized by a notary public or executed before a commissioner for oath.^[30] The Bill intends this to serve as evidence that parties consent to the arrangement and that they understand its terms and conditions.^[31]

Some United Kingdom (UK) Laws on Surrogacy

Surrogacy Arrangement Act 1985

The Surrogacy Arrangements Act (SAA) 1985 is a piece of legislation in the United Kingdom that regulates surrogacy agreements. The law, which has been in existence for over 30 years, contains some salient points that shall be examined briefly below.

1. The SAA 1985 is popularly known for its provision for the unenforceability of surrogacy arrangements. The Act provides that no surrogacy arrangement is enforceable by or against any of the persons making it.^[32] Thus, even where both parties agree to certain terms, these terms cannot be legally compelled or enforced by the courts.
2. The Act prohibits any commercial arrangements related to surrogacy. In essence, no person shall make any negotiation on a commercial basis with a view to entering into a commercial agreement.^[33] In order words, a person who contributes to the making of a surrogacy arrangement and receives payment or acts with the intent of receiving payment will be committing a criminal offence. However, where a surrogate mother herself or a person with a view to a surrogate mother carrying a child for him or her, does any act in the aforementioned section 2(1) of the SAA 1985, it shall not be an offence for such a person.^[34] This entails that third parties are prevented from profiting from the surrogacy arrangement.
3. The SAA 1985 prohibits any form of advertisement that suggests that a person is or may be willing to arrange or facilitate a surrogacy agreement, or that a person is searching for a surrogate mother or seeking individuals who want a surrogate.^[35] However, this prohibition does not apply to advertisements by non-profit organizations, provided the advertisement only involves actions that wouldn’t violate section 2(1) (even if done commercially).^[36] Finally, the Act provides that a person who contravenes this provision is guilty of an offence.^[37]

The Human Fertilization and Embryology Act 2008

The Human Fertilization and Embryology Act (HFEA) 2008 seeks to ensure that the regulation of assisted reproduction and embryo research is fully up to date with scientific advancements and evolving societal values^[38] It amended the Human Fertilization and Embryology Act 1990 and maintains the Human Fertilization Embryology Authority as the body responsible for implementing the Act.^[39]

The Act outlines the eligibility criteria and process for obtaining a parental order, which legally transfers parental rights from a surrogate (for instance) to the intended parents.^[40] These sections balance the rights of the surrogate, who must consent to the order, and the intended parents, who wish to establish a legal relationship with the child.

Analysis of the Nigerian Surrogacy Bill Vis-a-Vis UK Surrogacy Laws

The proposed Bill on surrogacy in Nigeria has some similarities with the laws governing surrogacy in UK, although differences abound.

Firstly, both the Nigerian Bill and UK surrogacy laws prohibit commercial surrogacy. However, while the Nigerian Bill appears to prohibit every person involved in a surrogacy arrangement entirely without any exception, the SAA 1985 provides that it shall not be an offence for a surrogate mother or intended parent(s) to engage in commercial surrogacy. Thus, it appears to only prohibit third parties from benefiting from the surrogacy agreement. It is an offence for them to do so.

Furthermore, while the SAA 1985 expressly provides that any surrogacy arrangement entered into in the UK is unenforceable, there is no such provision in the NSRC Bill 2024. The Bill rather made provisions that will ensure that a surrogacy arrangement must be in writing and with the informed consent of all parties involved, which must be registered by the NSRC. Prima facie, it seems that the Bill intends for the arrangement to be enforceable, with surrogacy being regarded as a contractual agreement.

Additionally, pursuant to the HFEA 2008, a parental order must be obtained from the court by intending parents so as to transfer parental rights to the applicants (intending parents). This provision is not embedded in the NSRC Bill 2024. Consequently, this omission in the Bill may translate to mean that there is no requirement for such parental order in the Nigerian jurisdiction once the provision of the law, especially with respect to the surrogacy arrangement, is complied with by all parties involved.

International Best Practices on Surrogacy

At this juncture, it will be pertinent to consider some international best practices on surrogacy. This is relevant in understanding how countries are expected to approach the regulation, ethics and legalities surrounding surrogacy arrangements.

1. It is important to state that the various countries in the world should have a comprehensive framework on surrogacy, clearly defining the legal rights of the different parties involved in surrogacy. Thus, it is a laudable development in Nigeria to see that the National Assembly is in the process of enacting a comprehensive legislation on surrogacy so as to clearly define the rights of the parties involved.
2. A major key principle of international best practice on surrogacy is ensuring that the best interest of the child is upheld. The best interest of the child must be the paramount consideration in decision-making regarding children born through surrogacy.^[41]
3. All parties involved in surrogacy should receive in-depth counseling to ensure they are comfortable with their decisions.^[42]
4. Children born through surrogacy should not be discriminated against but accorded the same rights as other children born through the usual procedure of childbirth.
5. Legal parentage is another relevant issue to be considered. It is important for legal parentage to be established to determine the legal parents of the child. For instance, the UK law provides for a court order to vest legal parentage on intended parents. This is not a requirement in the proposed law on surrogacy in Nigeria.

Conclusion

The NSRC Bill, 2024, introduces the much-needed legal framework for surrogacy in Nigeria, aiming to safeguard the rights of all parties involved. It is a welcome development in Nigeria with respect to the practice of Family Law. For an extended period, there have been recommendations by professionals on the need to have a comprehensive legislation on surrogacy, to address certain legal, ethical and medical issues surrounding surrogacy in Nigeria.

It is my recommendation that the Bill should integrate more International Best Practices in order to ensure that the welfare of all parties involved is protected.

1. Adelakun, OS, ‘The Concept of Surrogacy in Nigeria: Issues, Prospects and Challenges’, (2018) 18, African Human Rights Journal, <https://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962018000200009> accessed 8^th November, 2024. ↑
2. Ibid. ↑
3. Turk, R and Terzioglu, F, ‘Ethical Issues in the Surrogate Maternity Practice’, <https://www.google.com/search?q=ethical+issues+in+the+surrogate+maternity+practice&oq=ethical+issues+in+the+surrogate+maternity+practice&aqs=chrome..69i57j0i390i512i650l3j0i512i546j0i546i649j0i512i546.18421j0j7&sourceid=chrome&ie=UTF-8> accessed 8^th November, 2024. ↑
4. Umeora OJ et al, ‘Surrogacy in Nigeria: Legal, Ethical, Social, Cultural, Psychological and Religious Musings’, (2014) 13 African Journal of Medical and Health Sciences 105-106. ↑
5. UNICEF, ‘Key Considerations: Children’s Rights and Surrogacy’, <https://www.google.com/search?q=Unicef%2C+Key+considerations%3A+children%27s+rights+and+surrogacy&oq=Unicef%2C+Key+considerations%3A+children%27s+rights+and+surrogacy&aqs=chrome..69i57.21073j0j4&sourceid=chrome&ie=UTF-8> accessed 8^th November, 2024. ↑
6. Punch, ‘Rep ess Seek Establishment of Surrogacy Regulatory Commission’, <https://punchng.com/reps-seek-establishment-of-surrogacy-regulatory-commission/> accessed 8^th November, 2024. ↑
7. Ibid. ↑
8. Adekunle, OS, (n1). ↑
9. Ibid. ↑
10. Surrogacy Bill 2024, s 1(1). ↑
11. Ibid, s 1(2). ↑
12. Ibid, s 6. ↑
13. Ibid, s 7(1). ↑
14. Ibid, s 8(1). ↑
15. Ibid, s 8(2). ↑
16. Ibid, s 18(1). ↑
17. Ibid, s 9(1). ↑
18. Ibid, s 9(2). ↑
19. Ibid, s 9(3). ↑
20. Ibid, s 10(1). ↑
21. Ibid, s 10(2). ↑
22. Southern Surrogacy, ‘A Step-by-Step Guide to the Medical Surrogacy Process’, <https://www.southernsurrogacy.com/surrogates/medical-process/> accessed 8^th November, 2024. ↑
23. Ibid. ↑
24. Eme, M, ‘Legal Framework for Surrogacy in Nigeria’, <https://www.mondaq.com/nigeria/family-law/1217952/legal-framework-for-surrogacy-in-nigeria> accessed 8^th November, 2024. ↑
25. Surrogacy Bill, 2024, s 18(2). ↑
26. Ibid, s 12(1). ↑
27. Ibid, s 12(2). ↑
28. Ibid, s 12(3). ↑
29. Ibid, s 13(1). ↑
30. Ibid, s 14(1). ↑
31. Ibid, s 14(2). ↑
32. SAA 1985, s 1A. ↑
33. Ibid, s 2(1). ↑
34. Ibid, s 2(2). ↑
35. Ibid, s 3(1). ↑
36. Ibid, s 3(1A). ↑
37. Ibid, s 3 (5). ↑
38. Fenton, R et ql, ‘Fit for Purpose? The Human Fertilization and Embryology Act 2008’, (2010) 32 (3), Journal of Social Welfare & Family Law, <https://www.researchgate.net/publication/239798282_Finally_fit_for_purpose_The_Human_Fertilization_and_Embryology_Act_2008> accessed 8^th November, 2024. ↑
39. Ibid. ↑
40. HFEA 2008, s 54. ↑
41. UNICEF (n4). ↑
42. NLM, ‘Insight into Different Aspects of Surrogacy Practices’, <https://pmc.ncbi.nlm.nih.gov/articles/PMC6262674/> accessed 8^th November, 2024. ↑