Surrogacy and adoption are alternatives available to individuals who are unable to bear children of their own. In addition to childlessness, many people adopt simply to give a home and family to children who might not otherwise have them, or to relieve parents who are unable to take care of their child.
Surrogacy is the practice whereby a woman (surrogate) elects or is commissioned to carry a child on behalf of another (commissioning or intending parent) on the agreement that the child would be handed over to the commissioning parent upon the birth of the child.
Surrogacy can either be traditional or gestational.
Traditional Surrogacy: This happens where there is a genetic link between the surrogate and the child. Here, the surrogate is inseminated with the semen of one of the intending parents which in turn fertilizes the eggs of the surrogate.
Gestational Surrogacy: on the other hand, is a type of surrogacy where there is no genetic link between the surrogate and the child. By means of In-Vitro fertilization (IVF), an embryo is created and then deposited in the surrogate to carry. This affords the intending parent the opportunity to become biological parents by contributing embryo created by their own egg and semen.
Adoption on the other hand is the process whereby a child’s legal rights and duties toward his/her biological parents are terminated and substituted towards the adoptive parents.
Adoption is legal in Nigeria. The Child’s Right Act 2003 (the Act) is the principal law regulating adoption in Nigeria and provides for the required qualifications which must be fulfilled in order to successfully adopt a child. By virtue of the Act, only a juvenile can be adopted.
A juvenile is a person who is less than 17 years. Also, the applicant must not be less than 25 years old and must be at least 21 years older than the child. In addition, a married couple can adopt a child of any sex, however, an unmarried person can only adopt a child of the same gender. In addition to the requirements stipulated in the Act, each state of the federation has its own laws on adoption providing regulations that can differ from one another. Thus, it is important to consult the laws of a particular state before embarking on the process of adoption. Applicants should not rely on the laws of a different state when trying to adopt in another state.
For example, an applicant seeking to adopt a child in Lagos must have fostered the child for a period not less than 3 months, however, in Akwa-Ibom, the applicant must have fostered the child for a period not less than 12 months. The documents required for a successful adoption also varies from state to state.
Unlike adoption, there is no legislation or judicial pronouncement on surrogacy in Nigeria. This, therefore, questions the legitimacy of the act and has created a void which is being filled by illegal commercial operators. Despite this lack of regulation, the concept of surrogacy is practiced in Nigeria. There are some privately organized agencies which engage in the ‘business’ of surrogacy. They act as a middle ground between the commissioning parents and the surrogate, bringing the parties together through a signed contract. Hence, surrogacy agreements in Nigeria are based on simple contract terms. The question therefore arises as to whether surrogacy contracts can be enforced in the Nigerian courts.
From a contract law perspective, it can be argued that once the elements of a valid contract are present in the surrogacy agreement, then the surrogacy agreement can be enforced in the Nigerian courts. Therefore, once there is a valid offer, acceptance and a benefit or forbearance which is exchanged for the art of surrogacy, the surrogacy agreement can be enforced. However, there are other elements which have to be considered. A contract can be void for reasons of illegality and public policy.
While a surrogacy agreement will not be void as a result of illegality (due to the fact that there is no regulation on the subject), the issue of public policy may pose a challenge to the enforceability of surrogacy agreements. The religion and culture of the Nigerian citizens play a big role in developing the public policy of Nigeria. Although some elements of surrogacy can be traced to some Nigerian cultures where “women marry women” in order to continue to family lineage, there might be some religious concerns on surrogacy. Some Muslim scholars tend to adjudge it as similar to prostitution because it entails a woman carrying the child of a man who is not her husband. Christians might see this as a gravely immoral technique that entails the disassociation of a married couple and against the dignity of a child. These arguments can sway the court into making a surrogacy agreement void for reason of public policy.
Thus, in order to ensure enforcement of a valid surrogacy contract and prevent exploitation of any of the parties to a surrogacy agreement, there is need for an adequate regulation on this issue. In addition to the issue of enforceability, there are several legal issues which can arise from surrogacy, such issues include maternity, paternity, fundamental rights, coercion, confidentiality and contractual problem.
Since surrogacy is already an existing practice in Nigeria, these issues have to be addressed by a legislative enactment.
Internationally, adoption is legal in almost all the countries in the world. However, adoption is prohibited in most countries whose judicial system is based solely or partly on Islamic law.
In contrasts to adoption, surrogacy is not legal in many countries. Also, in the few countries where it is legal, there are restrictions which may depend on whether the surrogacy is done for commercial purposes or altruistic (i.e., selfless with the surrogate only reimbursed for the expenses incurred as a result of the pregnancy, or a situation where the surrogate is a friend or relative) or whether the commissioning parent is heterosexual, gay or a foreigner.
Most of the countries where surrogacy is legal permits it for altruistic purposes, examples of such countries are the U.K, Canada, South Africa and Australia. In the U.K and Canada, advertising for surrogacy is illegal while in South Africa, only heterosexual South African residents can engage in surrogacy. In the U.S, surrogacy regulation varies from state to state. In some states only altruistic surrogacy is permitted and commercial surrogacy prohibited. However, gay and heterosexual citizens and foreigners can access surrogacy.
These restrictions to surrogacy in many countries of the world stems from the morality associated with the art of surrogacy. With the exception of altruistic surrogacy, all surrogacy contracts involve payment to entice women in need of money. Critics of surrogacy argue that it is usually the poor, or those in temporary need of money, who agree to rent their bodies and “sell the end human product to those who can afford to buy a human infant”. Thus, as a result of this, surrogacy is seen as an extension of a long history of exploitation of women in line with the exploitation carried out on low-paid female service workers such as housekeepers and nannies and is regarded as “the dehumanization of a woman’s body to become a womb for hire”.
In addition to the issue of exploitation, critics also criticize the risk associated with human incubators. Surrogates risk the odds of premature menopause, loss of fertility, reproductive cancers and in some cases death. There is also the issue of emotional trauma on the surrogate and surrogate born babies as a result of the separation at birth.
Despite the above criticism on surrogacy, there are still some proponents of surrogacy. Surrogacy is beneficial to those who have struggled with infertility, LGBT couples, and those with medical conditions that make pregnancy unsafe. It also allows parents to maintain a biological relationship with their child. Hence, the existence of regulations permitting surrogacy.
Written by: Chinwe Alli Esq.