SURROGACY IN NIGERIA: LEGAL UNCERTAINTY, EMERGING LEGISLATIVE REFORMS, AND PRACTICAL IMPLICATIONS FOR INTENDED PARENTS, SURROGATES, AND CHILDREN
By Chisom Favour Eze
Introduction
Advances in Assisted Reproductive Technology (ART) have transformed the landscape of family formation globally. For individuals and couples facing infertility, medical conditions affecting reproduction, or other barriers to parenthood, surrogacy has emerged as a viable reproductive option. In Nigeria, the increasing availability of fertility services and assisted reproductive procedures has contributed to the growing popularity of surrogacy arrangements.
Despite its increasing prevalence, surrogacy remains largely unregulated under Nigerian law. Unlike several jurisdictions that have enacted specific legislation governing surrogacy, Nigeria currently operates within a legal vacuum. This absence of a comprehensive legal framework has created significant uncertainty regarding the rights and obligations of intended parents, surrogate mothers, fertility clinics, and children born through surrogacy arrangements.
Recent legislative initiatives before the National Assembly indicate a growing recognition of the need for regulation. As debates continue regarding reproductive rights, child welfare, and ethical medical practice, surrogacy has become an important area of legal and policy consideration.
This article examines the current legal position of surrogacy in Nigeria, highlights emerging legislative reforms, and discusses the practical implications for intended parents, surrogate mothers, and children born through surrogacy arrangements.
Understanding Surrogacy
Surrogacy is generally defined as an arrangement in which a woman agrees to carry and deliver a child on behalf of another individual or couple, commonly referred to as the intended parent(s).
There are two principal forms of surrogacy.
Traditional Surrogacy
Traditional surrogacy involves the use of the surrogate mother’s own egg. Consequently, the surrogate is genetically related to the child. Conception typically occurs through artificial insemination or other assisted reproductive methods.
Gestational Surrogacy
Gestational surrogacy involves the implantation of an embryo created using the gametes of the intended parents or donors. In this arrangement, the surrogate mother has no genetic relationship with the child.
Globally, gestational surrogacy has become the preferred model because it reduces legal disputes relating to genetic parentage and custody.
The Current Legal Position of Surrogacy in Nigeria
At present, Nigeria has no federal legislation specifically regulating surrogacy arrangements.
Importantly, the absence of legislation does not amount to a prohibition. Fertility clinics across major cities such as Lagos, Abuja, and Port Harcourt continue to provide assisted reproductive services, including surrogacy-related procedures.
However, the absence of a dedicated legal framework raises important legal questions concerning:
- Determination of legal parenthood;
- Custody and parental responsibility;
- Citizenship and nationality issues;
- Medical liability;
- Enforceability of surrogacy agreements;
- Rights and obligations of intended parents; and
- Rights and protection of surrogate mothers.
In practice, parties often rely on contractual agreements to regulate their relationships. While such agreements may provide some degree of certainty, their enforceability remains uncertain because Nigerian courts have not yet developed substantial jurisprudence on surrogacy.
Like all contracts, surrogacy agreements may be subject to judicial scrutiny where their terms conflict with public policy, statutory provisions, or the welfare of a child. Consequently, stakeholders should not assume that every provision contained in a surrogacy agreement will automatically be enforceable.
Constitutional and Human Rights Considerations
Although the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not specifically address surrogacy or assisted reproductive technology, several constitutional rights may become relevant in surrogacy-related disputes.
Human Dignity
Section 34 of the Constitution guarantees the dignity of the human person and prohibits degrading treatment.
This provision is particularly relevant in addressing concerns relating to the exploitation of economically vulnerable women who may be induced into surrogacy arrangements under unfair conditions. Any future legislative framework must incorporate safeguards against coercion, exploitation, and unsafe medical practices.
Privacy and Family Life
Section 37 of the Constitution protects privacy and family life.
The decision to have children through assisted reproductive technology may arguably fall within the sphere of personal autonomy and family life. Consequently, any future regulation should strike an appropriate balance between regulatory oversight and respect for reproductive choice.
Freedom from Discrimination
Section 42 of the Constitution prohibits discrimination on specified grounds.
As reproductive technologies continue to evolve, policymakers may be required to consider whether restrictions on access to surrogacy disproportionately affect individuals suffering from infertility or other reproductive challenges.
Child Rights and Welfare Considerations
Perhaps the most important stakeholder in any surrogacy arrangement is the child.
The Child Rights Act 2003 establishes the principle that the best interests of the child shall be the primary consideration in every action concerning a child. This principle should serve as the cornerstone of any future surrogacy legislation.
Several child-related issues remain unresolved under Nigerian law, including:
- Legal parentage;
- Birth registration;
- Citizenship and nationality;
- Inheritance rights;
- Custody disputes; and
- Maintenance obligations.
For example, Nigerian law presently provides no clear statutory mechanism for determining legal parenthood where a child is born through surrogacy. Questions may arise concerning whether legal parentage should be determined by genetics, gestation, intention, or contractual agreement.
Similarly, uncertainty exists regarding situations where intended parents refuse to assume responsibility for a child born through surrogacy. In such circumstances, courts would likely be guided by the best interests of the child principle.
These uncertainties underscore the urgent need for legislative intervention.
Emerging Legislative Reforms
Recognising the regulatory gap, the National Assembly has recently considered legislative proposals aimed at establishing a legal framework for surrogacy.
The Nigeria Surrogacy Commission Bill 2024
In October 2024, the House of Representatives considered a Bill for an Act to Establish the Nigeria Surrogacy Commission and Other Related Matters.
The proposed legislation seeks to establish a national regulatory body responsible for overseeing surrogacy arrangements throughout Nigeria.
Among other objectives, the bill proposes:
- Registration and regulation of surrogacy agencies;
- Monitoring compliance standards;
- Protection of surrogate mothers;
- Promotion of ethical surrogacy practices; and
- Regulatory oversight of surrogacy arrangements.
One of its most significant features is the proposed prohibition of commercial surrogacy and the adoption of an altruistic surrogacy model.
The Women’s Health and Well-being Bill 2025
In May 2025, the House of Representatives also considered a Bill for an Act to Protect the Health and Well-being of Women, Particularly in Relation to Surrogacy and Related Matters.
The proposed legislation focuses primarily on safeguarding women involved in surrogacy arrangements.
Key provisions include:
- Mandatory informed consent;
- Counselling requirements;
- Medical screening procedures;
- Prenatal and postnatal healthcare;
- Protection against coercion and exploitation; and
- Penalties for non-compliance.
If enacted, both bills would significantly alter the legal landscape of surrogacy in Nigeria and provide much-needed certainty for stakeholders.
Practical Implications for Stakeholders
Intended Parents
For intended parents, the current legal uncertainty creates significant risks.
Questions concerning legal recognition, custody, parental responsibility, and birth registration remain largely unresolved. Intended parents should therefore obtain independent legal advice before entering into any surrogacy arrangement and ensure that all relevant issues are comprehensively documented.
Surrogate Mothers
Surrogate mothers face a range of medical, legal, emotional, and financial risks.
Without statutory safeguards, surrogate mothers may be vulnerable to exploitation, inadequate healthcare support, or disputes concerning compensation and parental rights.
A comprehensive legal framework would provide important protections relating to informed consent, healthcare, counselling, and legal representation.
Fertility Clinics
The absence of uniform regulatory standards exposes fertility clinics to legal uncertainty and potential liability.
Future legislation is likely to impose licensing requirements, ethical standards, record-keeping obligations, and compliance mechanisms designed to promote accountability and professionalism within the fertility sector.
Children Born Through Surrogacy
Children born through surrogacy remain the most vulnerable participants in the process.
Any future legislation should ensure that issues relating to parentage, citizenship, inheritance, maintenance, and welfare are clearly addressed in a manner that prioritises the best interests of the child.
Recommendations for Law Reform
To address the current legal uncertainty, Nigeria should consider the following reforms:
First, enact comprehensive legislation specifically regulating surrogacy arrangements.
Second, establish a national regulatory authority responsible for licensing and monitoring fertility clinics, surrogacy agencies, and related service providers.
Third, provide clear statutory rules governing legal parentage and parental responsibility.
Fourth, require independent legal advice and counselling for all parties before entering surrogacy arrangements.
Fifth, mandate medical and psychological screening for intended parents and surrogate mothers.
Sixth, introduce robust safeguards against coercion, exploitation, trafficking, and unethical recruitment practices.
Seventh, incorporate the best interests of the child as the overriding consideration in all surrogacy-related decisions.
Finally, establish a framework for resolving disputes efficiently while addressing cross-border surrogacy issues involving citizenship, nationality, and recognition of foreign judgments.
Conclusion
Surrogacy has become an increasingly important reproductive option for individuals and couples seeking to overcome infertility and other reproductive challenges. Yet, despite its growing acceptance and utilisation in Nigeria, the legal framework governing surrogacy remains largely undeveloped.
The current reliance on contractual arrangements and general legal principles is insufficient to address the complex issues arising from assisted reproductive technology. Questions relating to legal parenthood, child welfare, surrogate protection, and regulatory oversight remain largely unresolved.
The legislative initiatives presently before the National Assembly represent a significant step towards addressing these challenges. If properly enacted and implemented, they have the potential to provide certainty for intended parents, protection for surrogate mothers, accountability for fertility providers, and safeguards for children born through surrogacy arrangements.
Ultimately, effective regulation of surrogacy is not merely a matter of legal reform. It is a matter of human dignity, reproductive autonomy, child welfare, and social justice. Nigeria now has a unique opportunity to establish a modern legal framework that balances innovation in reproductive medicine with the protection of fundamental rights and the best interests of all parties involved.