Is Contract Of Surrogacy enforceable under the Nigerian Law? By Timothy Olamide




Is Contract Of Surrogacy enforceable under the Nigerian Law?


         Timothy Olamide


     Introduction 


1.  Surrogacy is such a term rarely discussed in African society because of our cultural practices and believes towards procreation.


2. However, this does not affect the practice of surrogacy in African countries, particularly Nigeria.  


 3. But before delving into the heart of this               short article, it becomes pertinent to know    what surrogacy is all about.


Meaning of Surrogacy


4.Surrogacy is defined as the practice where a     woman (a surrogacy) carries a child for another person(s) (the commissioning or intending parents) due to a prior arrangement to a prior arrangement that the child would be handed over to the commissioning parent at birth.[1] Surrogate motherhood refers to a situation whereby a third party female elects or is commissioned to carry a pregnancy on behalf of another couple, delivers a baby and hands over to the commissioning parent at birth.[2]


 3. Also the South African Children’s Act 38 of 2005 would be of help in understanding of the concept.  Section 1 of the Act defines a surrogate agreement as; "an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention, with the intention that the child concerned becomes the legitimate child of the commissioning parent"


4.The woman who carries pregnant for another is called surrogate while the couple who is seeking the service of the service of a surrogate is known as the commissioning couple.[3]


 5.From the various definitions adduced above, it can be aptly concluded that, surrogacy is a contractual relationship in nature as there must be prior agreement between the parties. There is no any prior form of sexual relationship between the parties but through an artificial insemination, the surrogate carries the pregnancy.


Kinds of Surrogacy 


6.There are two kinds of surrogacy which are:

    (i)Traditional Surrogacy: Traditional Surrogacy is a practice where the surrogate has a genetic contribution in the conception of the baby, such as using her own oocytes in in vitro fertilisation (I.V.F) or being inseminated with the man’s semen. 


(ii) Gestation Surrogacy: This is also known as Host surrogacy. Here, the surrogate has no such contribution and only a carrier of the pregnancy.[4] It has been described as a kind of renting out of womb.[5]


7.The two kinds of Surrogacy can either be Altruistic or Commercial in nature  of which both are being practiced in Nigeria.[6] 


8. One of the main reasons why couples enter into surrogacy contract mostly as a result of the infertility of one of the spouses in which is the wife. Other reasons may be as result of other medical conditions of the wife or a choice of decision between the couples themselves.


Is Contract of Surrogacy enforceable under the Nigerian Law?


9. This article answers the above question in the positive of which the reasons are not farfetched. Though Research has it that there is no a single law on the concept which has formed the subject of practice among the Nigerians. This does not mean surrogacy is illegal in Nigeria. 


10..The concept itself has its foundation in agreement, meaning that it is a contract of which the two basic elements of an offer and acceptance must be present. This article is of the view that the principles of contract will govern the contract of Surrogacy in Nigeria.


Conclusion 


11. It can be aptly concluded that surrogacy being a contract in nature and very important to human procreation which is commonly practiced in Nigeria should not be left unregulated. This would definitely  curbed abuses of the practice in the Country. The rights and duties of both parties would be clearly defined as well as the right of the child be protected.


References

 

 1.M., Brazier, S., Golombok, a, Campbell, ‘Surrogacy: review for the UK Health Ministers of Current arrangements and regulation, Human Reproduction 1997, vol 3, No. 6 PP. 623-628. retrieved from https://academic.oup.com/humupd/article-pdf/3/6/623/1704754/030623.pdf     

2.Serah. O.S (2019) ‘Legal Approach  To Surrogacy In Nigeria’ retrieved from https://www.mondaq.com/nigeria/family-law840674/legal-approach-to--surrogacy-in -nigeria  

 3.Abayomi, B.A and Victor, D.A ‘Gestational Surrogacy in Nigeria’ retrieved from https://www.resaerchgate.net/publication/323907314_Gestation_Surrogacy_in_Nigeria 

4.ibid

5.Ibid 

6.Ibid 


                      O.T.OLAMIDE

                   FINAL YEAR STUDENT

                      FACULTY OF LAW

                            ABU,ZARIA

              [email protected]

                               2021-06-06

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