Why Surrogacy Is Unlawful In Parts of Nigeria?

Daily Law Tips (Tip 788) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

Introduction:
“SURROGACY” as a term may not be as common as “Adoption” in Nigeria but certainly the practise of surrogacy is not strange to Nigerians. Surrogacy is an arrangement whereby on agreement, a person (the Surrogate Mother) bears a child for another person (the Commissioner) and the Surrogate Mother unconditionally hands over all rights concerning the child, including the child’s custody, upbringing, care and legal parenthood to the Commissioner. In some cases, the Commissioner may contribute egg or any other genetical elements to the baby (Gestational Surrogacy) and in other cases, the Commissioner contributes nothing genetically (Traditional/Genetical Surrogacy).

Many legal and medical writers agree that there is no legal framework for surrogacy in Nigeria but some argue that surrogacy is not criminal in Nigeria. I agree that there is no clear-cut legal framework for surrogacy in Nigeria. However, I vehemently disagree with the school of thought that surrogacy is lawful in Nigeria. Rather, as shown below, Nigerian laws criminalize surrogacy and every other form of buying, selling, hiring and dealings on born and unborn babies, especially in certain parts of Nigeria.

Legality of Surrogacy under the Child Rights Act and Child Rights Laws:
In Nigeria, laws are written. Until an act or omission is criminalized by a written state or federal law, such an act, action or omission is not unlawful/illegal. It does not matter if an act, action or omission is immoral or contrary to any religious belief. It is only a written law that says what is unlawful/illegal. Although, morality is considered in making laws, morality is not law.

Children (including, unborn and born babies) and their rights are protected in Nigeria by both federal and state laws, including the Child’s Rights Act of 1993, Trafficking In Persons (Prohibition) Enforcement And Administration Act, Matrimonial Causes Act, Penal Code, Criminal Code and Child’s Right’s Laws of states. It must be mentioned that Custody, Acquisition of Parental Responsibilities, Guardianship, Wardship, Fostering, Adoption, and the procedures are already contained in the Child’s Rights Act of 2003 and the several Child Rights Laws in states across Nigeria. Hence, offences relating to children are stated and covered in the above-mentioned laws and others.

Generally, 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”. This provision clearly frowns at the processes and procedures of surrogacy, even without mentioning the term, “Surrogacy”. At this point, it is important to list the elements present in every surrogacy and then compare them with the verbs listed in section 30 of the Child Rights Act, to truly decipher the impact of the Child Rights Act on surrogacy in Nigeria. It is also important to read and understand section 30 of the Child Rights Act, without focusing on its side notes/marginal notes (since side notes do not form part of statutes). Also, it must be emphasized that the Child Rights Act, protects born and an unborn child.

Generally, there are several forms and types of surrogacy, but science groups them all, under two (2) key types of surrogacies; gestational surrogacy and traditional surrogacy. According to Olusesan Ayodeji Makind et al, “For gestational surrogacy, the surrogate mother is implanted with an in-vitro fertilized embryo from the parents or donors, whereas in genetic surrogacy, the surrogate mother will also be contributing the egg (Field, 2014). For some classes of surrogacy, neither the spermatozoa nor the egg are genetically linked to either the commissioning couple or the surrogate mother (Field, 2014).”

Surrogacy entails an agreement between parties over the renting of womb and the dealing on babies, as seen in all the types of surrogacies. In some surrogacies (particularly, Gestational Surrogacy), the egg and spermatozoa or either of them may not be the property of the surrogate mother, however, the surrogate mother carries the baby and is delivered of the baby, after which the baby is sold to the Commissioner. Hence, at all times, there is an agreement to pay and there is a payment for a surrogate mother, for her to give away her child and her rights over her child at birth. At this point, Nigerian jurisprudence, cannot contain the argument of whether a surrogate mother is the mother of a child, where both the egg and spermatozoa for the child belongs to another person, and the surrogate mother merely leased out her womb, in a gestational surrogacy. It appears being a mother is being the person that carried and give birth to a child.

By all standards, parties in a surrogacy “… buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child” contrary to section 30 of the Child Rights Act. The true question that will validate this position, is; “Can a person enforce an agreement to buy and sell a baby (Surrogacy Agreement), even where parties are in agreement?” The answer is negative, since surrogacy agreements are agreements over unlawful acts and cannot be enforced by any court. Unfortunately, there is no known case law where the court has sat over a surrogacy agreement.

It is important to allow some exceptions to the above submission. Yes, there are cases where surrogate mothers perform their surrogacy without charging or accepting any fees. For example, a biological mother to a woman having difficulties with pregnancy, can become a surrogate and bear children to her daughter. Where there is surrogacy without fees, arguably, parties in such surrogacy do not “… buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child”. Well, a further focus on the words; “… dispose of or obtain possession of or otherwise deal in a child” may invalidate this position and rather regard all forms and manner of surrogacy as unlawful and illegal.

If parties in a surrogacy do “… buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child”, then surrogacy is a criminal offence under the Child Rights Act. As such, surrogacy and any other form of buying, selling, hiring, letting on hire, disposing of or obtaining possession of or otherwise dealing in a child, are also punishable with imprisonment for ten (10) years.

Application of the Child Rights Act:
The Child Rights Act is a federal legislation made to protect child 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 adjective “Nigerian” before the word “Child”, insinuates that the Child Rights Act intends to apply to all Nigerian children and all parts of Nigeria. While, the Constitution of Nigeria, omitted issues of Child Rights from the powers of the Federal Government of Nigeria and that of the Local Governments, thereby leaving such issues under the care of the State Governments. This is part of the reasons that some states in Nigeria have gone on to enact and make their own Child Rights Laws (which are mere replicas of the Child Rights Act). However, some states in the northern part of Nigeria have failed and refused to enact Child Rights Laws, even as children are married as wives and their rights are perpetually violated.

On the basis of the above point on the application of the Child Rights Act, it will be hard for any person in any State in Nigeria, to be convicted under the Child Rights Act except under the Child Rights Law of that state. Hence, Child Rights Act has undoubted full force and application in the Federal Capital Territory, Abuja, since only the federal legislature makes law for Abuja. On this note, surrogacy is criminal in the Federal Capital Territory, Abuja under the Child Rights Act and also criminal in States that have Child Rights Laws. Consequently, surrogacy will not be criminal in states that have no Child Rights Law.

Legality of Surrogacy under the Trafficking In Persons (Prohibition) Enforcement And Administration Act:
The federal law on trafficking of persons; “Trafficking In Persons (Prohibition) Enforcement And Administration Act” seems to also greatly affect surrogacy. Section 13 of the Trafficking In Persons [Prohibition] Enforcement And Administration Act (TIPPEA Act) condemns all forms of human trafficking. It also defined trafficking in persons in its section 82, 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 for 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. ” This definition clearly captures surrogacy, parties to surrogacy and all other agents/persons (doctors, lawyers and all others) involved in the business of surrogacy, where there is exploitation. This is seen where there is “…the giving or receiving of payments or benefits…” to surrogate mothers for reproductive services and exploitative purposes under a surrogacy.

For clarity, TIPPEA Act defines “exploitation” to include, “… at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, deprivation of the offspring of any person, forced labour or services or practices similar to slavery, servitude or the removal of organs”. With this, any surrogacy that takes advantage of a surrogate mother, whether by force or deception, is trafficking in human and as such criminal. This is part of the reasons that surrogacy and its practices in baby factories (centers where girls and women are forced or deceived to get pregnant and bear children for other persons in return for money) are criminal.

Also, section 21 of the TIPPEA Act, states that; “Any person who buys, sells, hires, lets or otherwise obtains the possession or disposal of any person with intent, knowing it to be likely or having reasons to know that such a person will be subjected to exploitation, commits an offence and is liable on conviction to imprisonment for a term of not less than 5 years and a fine of not less than N2,000,000.00.” This specifically condemns and criminalizes all classes of surrogacy agreements that are exploitative of surrogate mothers and also speaks to all persons and agents involved in such exploitative surrogacy. It criminalizes all forms of surrogacies that are exploitative of surrogate mothers and they are punishable with imprisonment for a minimum of 5 years or fine of a minimum of N2 Million Naira or both.

Conclusion:
Until there is a legal framework for surrogacy and an express decriminalization of surrogacy; If parties in a surrogacy “… buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child”, it is criminal and punishable under the Child Rights Act and its equivalents in states across Nigeria. No matter how bad a law may be, the law is valid until it is amended or repealed by the legislature. The Child Rights Act and Child Rights Laws in Nigeria, criminalize all forms of exchange of babies for money (buying and selling of babies), which is a major ingredients and element in surrogacy. To this end, surrogacy is unlawful in parts of Nigeria where there are Child Rights Act or Laws.

Unlike the Child Rights Act and the Child Rights Laws, the Trafficking In Persons (Prohibition) Enforcement And Administration Act is a federal law that is operational in all parts of Nigeria. All states in Nigeria are bound by the provisions of the Trafficking In Persons [Prohibition] Enforcement And Administration Act (TIPPEA Act). The TIPPEA Act condemns surrogacy, where a surrogate mother or her baby is exploited. The TIPPEA Act focuses on protecting the victims of reproductive exploitation. The conducts of a surrogacy could make it to be a human trafficking; a federal offence.

Like in most aspects of life, developed nations have moved on and left Nigeria behind on issues of surrogacy. Child birth is crucial to mankind, especially Africans, where children are social status symbols. Science has further constructed smiles and hopes for persons that could have been label infertile forever, had they lived centuries ago. Surrogacy is now a key part of fertility management for mankind, and the Nigerian laws must be beaten to align with it. Laws are made to grow with society and to reflect the true state of inhabitants of the society.

Although, Nigerian laws are lacking in providing legal pathway for ethical surrogacy, there are many successful surrogacies in Nigeria. Arguably, the lack of legal framework for surrogacy has emboldened the owners of baby factories and celebrated the growing unethical practices of health and legal experts as well as other concerned agents. There is need to standardize surrogacy procedures and processes as well as regulate surrogacy parties, surrogacy lawyers, agencies and medical clinics.

My authorities, are:
1. Section 36(8) of the Constitutional of the Federal Republic of Nigeria, 1999.
2. Sections 30, 68, 69, 82, 94, 100, 126 of the Child’s Rights Act of 2003.
3. Sections 1, 13, 21, 82 and 83 of the Trafficking In Persons [Prohibition] Enforcement And Administration Act, 2015
4. The judgement of the Supreme Court of Nigeria in the case of MOHAMMAT SELE v. STATE (1993) LPELR-3030(SC)
5. The judgment of the Supreme Court of Nigeria (on thtat side/marginal notes do not form part of enactments) in the case of PAUL YABUGBE v. COMMISSIONER OF POLICE (1992) LPELR-3505(SC)
6. Olusesan Ayodeji Makinde, Olufunmbi Olukemi Makinde , Olalekan Olaleye , Brandon Brown , Clifford O Odimegwu, “Baby factories taint surrogacy in Nigeria” (Reproductive Biomedicine Online, January 2016) accessed 4 May 2021
7. Anamesere Igboeroteonwu, Tom Esslemont, Thomson Reuters Foundation, “Baby traffickers thriving in Nigeria as recession bites” (Reuters.com, 12 October 2016) accessed 4 May 2021.
8. Olusesan Ayodeji Makinde, Olalekan Olaleye, Olufunmbi Olukemi Makinde, Svetlana S. Huntley and Brandon Brown, “Baby Factories in Nigeria: Starting the Discussion Toward a National Prevention Policy” (Trauma, Violence & Abuse) Vol. 18, No. 1 (January 2017), pp. 98-105 (8 pages) accessed 4 May 2021.
9. Onyekachi Umah, “Why Castration & Removal of Fallopian Tubes of Rapists are Lawful” (LearnNigerianLaws.com,
10. Onyekachi Umah, “Abandoning a Pregnant Woman or Girl is a Crime” (LearnNigerianLaws.com, 30 April 2021) accessed 3 May 2021.
11. Onyekachi Umah, “Abandonment Of Wife/Husband, Children Or Dependants Is A Crime” (LearnNigerianLaws.com, 3 December 2019) accessed 20 April 2021
12. Onyekachi Umah, “How Lagos State Is Legislatively Ahead Of Other States” (LearnNigerianLaws.com, 30 September 2020 accessed 20 April 2021
13. Onyekachi Umah, “The First Virtual Court Hearing Was In Borno State And Not In Lagos State” (LearnNigerianLaws.com, 1 June 2020) accessed 20 April 2021
14. Onyekachi Umah, “Emotional, Verbal And Psychological Abuse Is Now Criminal Offences” (LearnNigerianLaws.com, 3 September 2019) accessed 28 April 2021
15. Onyekachi Umah, “Forcing Wife to Stop Work is Now A Crime” (LearnNigerianLaws.com, 21 April 2021) accessed 26 April 2021
16. Onyekachi Umah, “It Is Now An Offence To Force Wife/Husband To Stop Working” (LearnNigerianLaws.com, 28 May 2019) accessed 20 April 2021
17. Onyekachi Umah, “Seizing or Destroying the Property of a Spouse is a Crime” (LearnNigerianLaws.com, 2 March 2021) accessed 20 April 2021
18. Onyekachi Umah, “Hiding/Concealing Domestic Violence Is A Crime” (LearnNigerianLaws.com, 11 December 2020) accessed 20 April 2021
19. Onyekachi Umah, “Domestic Violence Is A Crime Not A Family Dispute” (LearnNigerianLaws.com, 10 December 2020) accessed 20 April 2021
20. Onyekachi Umah, “Why Lagos State Needs A VAPP/SGBV Law” (LearnNigerianLaws.com, 26 January 2021) accessed 20 April 2021
21. Onyekachi Umah, “Lagos State Has No VAPP/SGBV Law !” (LearnNigerianLaws.com, 8 December 2020) accessed 20 April 2021
22. Onyekachi Umah, “An Access To Criminal Laws In Nigeria” (LearnNigerianLaws.com, 4 December 2020) accessed 20 April 2021
23. Onyekachi Umah, “8 New Things About Rape Laws In Nigeria” (LearnNigerianLaws.com, 3 December 2020) accessed 20 April 2021
24. Onyekachi Umah, “ChannelsTv Interviews Onyekachi Umah on Rape and the Laws.” (LearnNigerianLaws.com, 20 November 2020) accessed 20 April 2021
25. Onyekachi Umah, “Can A Woman Be Charged With Rape” (LearnNigerianLaws.com, 24 June 2020) accessed 20 April 2021
26. Onyekachi Umah, “Can A Husband Rape His Wife” (LearnNigerianLaws.com, 19 June 2020) accessed 20 April 2021
27. Onyekachi Umah, “When Is Seduction Or Indecent Dressing A Justification For Rape In Nigeria?” (LearnNigerianLaws.com, 18 June 2020) accessed 20 April 2021
28. Onyekachi Umah, “New Punishment For Rape In Nigeria” (LearnNigerianLaws.com, 23 June 2020) accessed 20 April 2021
29. Onyekachi Umah, “Rape Cannot Be Settled Out Of Court (No Room For Pay-Off/Forgiveness/Withdrawal Of Complaints” (LearnNigerianLaws.com,26 June 2020) accessed 20 April 2021
30. Onyekachi Umah, “A Female Too, Can BE Guilty Of Rape” (LearnNigerianLaws.com, 13 December 2018) accessed 20 April 2021
31. Onyekachi Umah, “Ages At Which Sexual Intercourse With Consent Will Amount To Rape” (LearnNigerianLaws.com, 20 February 2020) accessed 20 April 2021
32. Onyekachi Umah, “How To Prove Rape In Nigeria).” (LearnNigerianLaws.com, 2 July 2019) accessed 20 April 2021
33. Onyekachi Umah, “Child Marriage/Abuse Is A Crime (Rape): An Exposé On Laws Prohibiting Child Marriage” (LearnNigerianLaws.com, 22 June 2020) accessed 20 April 2021
34. Onyekachi Umah, “Forced Marriage Is An Offence In Nigeria.” (LearnNigerianLaws.com, 21 October 2020) accessed 20 April 2021
35. Onyekachi Umah, “Can a Married Woman Inherit Her Parents’ Property?”, (LearnNigerianLaws.com, 27 March 2020) accessed 20 April 2021
36. Onyekachi Umah, “Female Genital Mutilation/Cutting/Elongation, Breasts Ironing And Forced Marriage Are Now Criminal Offences In Nigeria” (Daily Law Tips [443]) accessed 20 April 2021
37. Onyekachi Umah, “Harmful Widowhood Practices (Traditions) Are Illegal In Nigeria” (Daily Law Tips [Tip 589]) accessed 20 April 2021
38. Onyekachi Umah, “Forceful Isolation/Separation Of Family Members/Friends Is Now An Offence In Nigeria” (Daily Law Tips [356]) accessed 120 April 2021
39. Onyekachi Umah, “Abolished Anti-Women Custom of Onitsha People of Anambra State, Nigeria” (LearnNigerianLaws, 10 March 2020) accessed 20 April 2021
40. Onyekachi Umah, “Citizen By Marriage Is Discriminatory and Against Nigerian Women”, (LearnNigerianLaws.com, 14 September 2020) accessed 20 April 2021
41. Onyekachi Umah, “Abolished Anti-Women Custom of Yoruba People of Nigeria”, (LearnNigerianLaws.com, 11 March 2020) accessed 20 April 2021
42. Onyekachi Umah, “Can a Married Woman Inherit Her Parents Property?” (LearnNigerianLaws.com, 27 March 2020) accessed 20 April 2021
43. Onyekachi Umah, “Approval For Marriage Of Female Officers/Staff Is Unconstitutional and Discriminatory”, (LearnNigerianLaws.com, 23 September 2020) accessed 20 April 2021
44. Onyekachi Umah, “It Is An Offence To Chase Out Wife/Husband From A Home Or Even Attempt To Do So” (LearnNigerianLaws.com, 17 May 2019) accessed 20 April 2021
45. Onyekachi Umah, “Examining Brutalization of House Helps in Nigeria. (An Exposé on Anti-Cruel Labour Laws in Nigeria)” (LearnNigerianLaws.com, 3 August 2020) accessed 27 April 2021

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