Childbirth, in many societies, particularly in Africa, is one of the societal expectations of grown adults, especially married ones.
It is for this reason that families often begin to worry and show concern when their married members do not start bearing children soon after marriage.
It is also a proof of fertility of the couple, even though the burden rests more heavily on women in our society.
Over the years, science has given hope to those who hitherto, had no hope of bearing their own children by themselves, on account of infertility through various medical interventions.
One of such is surrogacy.
Surrogacy in a nutshell is a system of arranged third party reproduction wherein a surrogate mother bears a child for another and hands over the child and all rights concerning the child to the person that commissioned them.
There are basically three types of surrogacies; gestational surrogacy, where the surrogate mother is implanted with an in-vitro fertilised embryo from the parents or donors; genetic surrogacy, where the surrogate mother contributes the egg and another type where neither the spermatozoa nor the egg are genetically linked to either the surrogate mother or the person who commissioned them.
Though relatively new in Nigeria, surrogacy is increasing in popularity.
In 2021, Nollywood actress, Ini Edo, removed the veil on the often shrouded in secrecy topic, when she revealed that she had a daughter with the help of a surrogate mother. Nike Osinowo, a former Nigerian beauty queen did the same in 2013.
That revelation by these celebrities threw up a lot of discussions around the subject. While some showed aversion to it, there were many who said they were open to trying it and those who are willing to be surrogates for the right price.
Agnes Oneh (not real name) said when she inquired about being a surrogate mother at an agency in Abuja, she was told that the couple she is carrying the child for would in addition to providing an accommodation for her, monthly food stuff, foot all hospital and wardrobe expenses and also paying her a monthly stipend of N50,000, pay her an amount ranging from N1 million to N5 million, depending on the number of babies.
Oneh said she was also informed that she would not meet or know who has commissioned her for the ‘job’, have the baby through a cesarean section to ensure she doesn’t have any contact with the child, who will be handed over to the parents upon delivery and that all of this would be sealed by a legal contract.
“It is something I do not mind doing. Apart from the money, it is an opportunity to bring smiles to the faces of a couple battling infertility,” she added.
Though there are surrogacy agencies involved in this business with advertisements on social media, calling for surrogates, sperm and egg donors, some people, even couples struggling to conceive naturally, for many years, simply can’t wrap their heads around this method of child bearing.
For them, this is not an option as some say they would rather “bear their own children.”
A lady who preferred anonymity told 21st CENTURY CHRONICLE that surrogacy is not an option at all because “there is nothing as good as having your own child.”
The operator of a Lagos-based surrogacy agency, who did not want to be named because of the sensitive nature of the issue, said the agency typically prefers women between the ages of 21 and 35 who have had babies previously with the last birth not later than four years.
She said the fee is between N1 million and N1.8 million in addition to provision of accommodation and feeding, while the agency takes 10 per cent as commission.
The agency operator said though there are no statistics to back up acceptance and or interest in the practice in Nigeria, it was fast developing and gaining acceptance as evidenced by the number of people who contact them requesting information.
Sharing his views on the issue, a driver, Mallam Hassan, told 21st CENTURY CHRONICLE that if his sister wants to do surrogacy for money, he won’t have a problem with that.
“Is it not business?”, Hassan asked. He said in fact, if the money is right, he would ask his sister for some percentage.
What the law says
While there is no clear-cut legal framework for surrogacy in Nigeria, the surrogate, it was learnt, is the legal mother and whether one of the couples is a legal parent is determined by the circumstances surrounding the insemination or embryo transfer.
A legal practitioner, Mr Onyekachi Umah, in his position on the issue of surrogacy, said it was against Section 30 Child Rights Act (CRA) 2003 and Section 13 of the Trafficking In Persons [Prohibition] Enforcement And Administration Act (TIPPEA), which criminalise surrogacy and every other form of buying, selling, hiring and dealings on born and unborn babies, especially in certain parts of Nigeria.
In a paper, “Why surrogacy is unlawful in parts of Nigeria,” written as part of a free law awareness programme of Sabi Law Foundation, he averred that the rights of all Nigerians, both born and unborn babies, are protected by written laws of custody, acquisition of parental responsibilities, guardianship, wardship, fostering, adoption, and the procedures are already contained in the CRA 2003 and the several Child Rights Laws in states across Nigeria.
Section 30 of the CRA says; “No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child”.
Umah argued that the provision clearly frowns at the processes and procedures of surrogacy, even without mentioning the term.
“Surrogacy entails an agreement between parties over the renting of womb and the dealing of 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 belong 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 gave birth to a child,” he said.
He added that 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 CRA and “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 in law where the court has sat over a surrogacy agreement.”
While pointing out that there are exceptions where surrogate mothers perform surrogacy without charging or accepting any fees, as in the case of a biological mother helping her daughter to bear children, he said in as much as there is no buying, selling, letting on hire, dispossessing of or obtaining possession of or otherwise dealing in a child, 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 and parties are liable to imprisonment for ten (10) years where the law has been domesticated.
Umah also said the federal law on trafficking of persons; “Trafficking In Persons (Prohibition) Enforcement And Administration Act” seems to also greatly affect surrogacy as Section 13 of the law condemns all forms of human trafficking and defines 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. ”
He said 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.
Similarly, the legal practitioner said 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 offense 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, he said, specifically condemns and criminalises all classes of surrogacy agreements that are exploitative of surrogate mothers and also speaks to all persons and agents involved in such exploitative surrogacy and also criminalizes all forms of surrogacies that are exploitative of surrogate mothers and they are punishable with imprisonment for a minimum of five (5) years or fine of a minimum of N2 million or both.
Conclusively, Umah said until there is a legal framework for surrogacy and an express decriminalisation 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, adding that no matter how bad a law may be, the law is valid until it is amended or repealed by the legislature.
Religious perspective
For some people, their reservation about surrogacy stems from their religious faith.
Catholicism, for instance, is against the practice.
On March 10, 1987, the Vatican responded to developments in reproductive technologies by issuing a 40-page document called “Instruction on Respect for Human Life in Its Origin and on the Dignity of Procreation.” This “instruction” was not only aimed at influencing the decisions of Roman Catholics, but was also intended to influence legislation worldwide on biomedical issues.
The document opposed all technological interventions into the process of human reproduction and more specifically, condemned artificial insemination and embryo transfer, in-vitro fertilisation, and surrogate motherhood under all circumstances.
It also opposed experimentation on embryos when such experiments were not of direct therapeutic benefit to the foetus, and amniocentesis (a procedure used to detect fetal defects) when done for the purpose of deciding whether or not to abort the foetus.
The moral basis for these pronouncements is a familiar one in Roman Catholic moral teaching. Official Roman Catholic teaching maintains that human life begins at the moment of conception.
‘A Fetus or an embryo must be respected and treated as a human person with dignity and rights, including the right to life’ and even amniocentesis for the purpose of genetic screening is obviously morally objectionable because abortion is wrong.
In Islam, the Shia scholars have declared surrogacy as a permissible act.
“It is referred to as Halal,” said Alfa Abdulazeez, who told 21st CENTURY CHRONICLE that he teaches at an Islamia, an Arabic school in Kubwa, Abuja.
‘Medically, there is no form of attachment whatsoever between the child and the surrogate mother’, said Dr. Aker Kenneth Ityo of Garki Hospital, Abuja. Dr Ityo said the exchange of genes in a newborn is only through the woman’s egg and the man’s spermatozoa when the mother is the owner of the egg, and the belief that the surrogate a mother would have any form of psychological attachment with the child born through surrogacy, is ‘just a fallacy’.
