What Happens If a Surrogacy Arrangement Goes Wrong? A Practical Guide for Surrogate Mothers

By M. V. Fagbohunlu

 

“Every surrogacy journey begins with hope. Yet when legal, medical, or personal disputes arise, hope alone is not enough. Proper legal protection is essential, not only for the intended parents and the surrogate mother, but above all, for the child.”

Introduction

Surrogacy has become an increasingly important pathway to parenthood for individuals and couples who are unable to conceive or carry a pregnancy. For many intended parents, it represents the fulfilment of a long-held dream of having a child. For surrogate mothers, it is an extraordinary act of generosity that requires significant physical, emotional, and legal commitment.

While many surrogacy arrangements proceed successfully, not every journey unfolds as planned. Unexpected disputes may arise before conception, during pregnancy, or after the child is born. Questions relating to medical decisions, financial obligations, parentage, custody, or contractual performance can quickly transform what began as a hopeful arrangement into a complex legal dispute.

These challenges are particularly significant in Nigeria, where there is currently no comprehensive federal legislation regulating surrogacy. In the absence of a clear statutory framework, surrogate mothers and intended parents must largely rely on carefully drafted agreements, general principles of contract law, existing healthcare legislation, and judicial interpretation where disputes arise.

For this reason, every woman considering becoming a surrogate should fully understand the legal, medical, financial, and emotional implications of the arrangement before signing any agreement.

When Can a Surrogacy Arrangement Go Wrong?

Although every surrogacy arrangement is unique, certain disputes arise more frequently than others. These may occur at any stage of the process and can have profound consequences for all parties involved.

Examples include:

• the intended parents refusing to accept the child after birth;
• disagreements regarding medical treatment during pregnancy;
• failure to pay the agreed compensation or reimburse pregnancy-related expenses;
• disputes concerning responsibility for medical complications;
• separation, divorce, incapacity, or death of the intended parents before delivery;
• breach of the surrogacy agreement by either party; and
• disputes regarding legal parentage, custody, or parental responsibilities.

Without clear legal planning, these situations may expose surrogate mothers to unnecessary uncertainty and hardship.

Common Challenges Faced by Surrogate Mothers

1. Non-Payment or Delayed Compensation

One of the most common sources of dispute concerns payment.

A surrogate mother may discover that the intended parents delay or refuse payment of the agreed compensation or fail to reimburse expenses incurred during pregnancy.

A properly drafted surrogacy agreement should therefore specify:

• the agreed compensation;
• payment milestones;
• reimbursement procedures;
• medical expenses covered; and
• the limited circumstances, if any, in which payment may legitimately be withheld.

Clear contractual provisions reduce uncertainty and minimise the likelihood of future disputes.

2. Medical Complications During Pregnancy

Every pregnancy carries inherent medical risks.

A surrogate mother may experience complications requiring prolonged hospitalisation, emergency treatment, or continuing medical care after delivery.

Important questions include:

• Who bears the cost of additional medical treatment?
• What happens if long-term medical care becomes necessary?
• Does the insurance policy adequately cover pregnancy-related complications?
• Who is responsible for unexpected healthcare expenses?

These issues should be addressed expressly before pregnancy begins rather than after complications arise.

3. Disagreements Regarding Medical Decisions

Medical decisions can become particularly sensitive during a surrogacy arrangement.

Disputes may arise concerning:

• Caesarean section versus natural delivery;
• foetal reduction;
• termination of pregnancy where serious medical issues arise;
• choice of hospital or healthcare provider; and
• emergency medical interventions.

Although intended parents have a significant interest in the pregnancy and the wellbeing of the unborn child, the surrogate mother retains fundamental rights concerning her own body.

Accordingly, medical decisions should always respect the surrogate’s informed consent, professional medical advice, and applicable legal and ethical standards.

4. Emotional and Psychological Challenges

Surrogacy is not merely a legal transaction; it is also an emotional experience.

Even where all parties fully understand the nature of the arrangement, a surrogate mother may develop a natural emotional attachment during pregnancy.

Similarly, intended parents may experience anxiety throughout the process, while uncertainty surrounding delivery and transfer of parental responsibilities can create emotional strain for everyone involved.

For this reason, psychological counselling should not be regarded as optional. Counselling before, during, and after pregnancy can assist all parties in managing expectations and preparing for the emotional realities of the surrogacy journey.

5. Refusal to Accept the Child

Although uncommon, there have been instances internationally where intended parents refuse to accept a child after birth.

Such situations may arise because of:

• congenital or medical conditions;
• relationship breakdown between the intended parents;
• financial hardship;
• changed personal circumstances; or
• unexpected disagreements concerning parental responsibility.

In jurisdictions without comprehensive surrogacy legislation, these situations may create significant uncertainty regarding responsibility for the child’s care and welfare.

Ultimately, any legal response should place the best interests of the child at the center of decision-making.

What Legal Protection Exists in Nigeria?

Nigeria presently has no comprehensive federal legislation governing surrogacy.

Consequently, disputes are generally addressed through a combination of:

• general principles of contract law;
• the Constitution of the Federal Republic of Nigeria 1999 (as amended);
• the Child Rights Act 2003 (where applicable);
• the National Health Act 2014;
• relevant state legislation;
• applicable clinical guidelines; and
• judicial interpretation where disputes come before the courts.

While these legal sources provide some guidance, they do not constitute a comprehensive regulatory framework.

This legal uncertainty makes professionally prepared contractual documentation particularly important.

Practical Steps Every Surrogate Mother Should Take

Before entering into any surrogacy arrangement, a prospective surrogate should:

• obtain independent legal advice;
• read and fully understand every provision of the agreement;
• ensure compensation and reimbursement arrangements are clearly documented;
• confirm responsibility for all medical expenses;
• understand the insurance arrangements;
• discuss potential medical risks with qualified healthcare professionals;
• undergo independent psychological counselling; and
• never sign documents under pressure or without adequate time for consideration.

Independent legal representation helps ensure that the surrogate’s interests are properly protected and that she fully understands both her rights and her obligations.

Can a Surrogate Mother Sue for Breach of the Agreement?

Depending on the particular facts, a surrogate mother may have legal remedies where intended parents fail to perform their contractual obligations.

Potential remedies may include:

• recovery of unpaid compensation;
• reimbursement of medical expenses;
• damages for breach of contract; and
• enforcement of contractual obligations where legally appropriate.

However, because Nigerian law on surrogacy remains largely undeveloped, the outcome of any dispute will depend upon the wording of the agreement, the surrounding facts, and the legal principles applied by the court.

The Importance of Proper Legal Documentation

Many disputes can be prevented through comprehensive legal planning before pregnancy begins.

Important documentation may include:

• a detailed surrogacy agreement;
• informed medical consent forms;
• confidentiality agreements;
• certificates confirming independent legal advice;
• insurance documentation; and
• parentage-related documentation where appropriate.

Proper documentation cannot eliminate every dispute, but it significantly reduces uncertainty, clarifies expectations, and provides valuable legal protection if disagreements arise.

Conclusion

Becoming a surrogate mother is an extraordinary act of compassion that enables others to experience the joy of parenthood. Yet generosity should never replace legal protection.

Every surrogate mother deserves clear information regarding her legal rights, medical care, financial protection, and contractual obligations before agreeing to participate in any surrogacy arrangement.

Until Nigeria enacts comprehensive legislation regulating surrogacy, careful legal planning, independent professional advice, and well-drafted agreements remain the strongest safeguards for surrogate mothers, intended parents, and, most importantly, the children whose welfare lies at the heart of every surrogacy arrangement.