Surrogacy Bill 2024: Nigeria’s Bold Step Toward Regulating A Complex Frontier By Obruche Koski

The Bill proposes the creation of the Nigeria Surrogacy Regulatory Commission to oversee and regulate surrogacy arrangements in the country.¹ The Commission, headquartered in Abuja, will include experts from various fields such as health, law, women’s rights, and religious organisations.² Its responsibilities will include registering surrogacy agreements, monitoring compliance with the law, resolving disputes, and providing guidance to all parties involved.³ The Registrar-General, a medical practitioner with over 15 years of experience, will lead the Commission alongside other members appointed for specific terms.⁴

Under the Bill, surrogacy agencies must be registered and follow strict guidelines, including maintaining private records of surrogates and intended parents.⁵ Commercial surrogacy is strictly prohibited, with penalties for anyone engaging in such activities.⁶ Only married couples or medically certified single persons who cannot conceive are eligible to enter surrogacy arrangements.⁷ Surrogates must be at least 21 years old, and all agreements must be voluntary, in writing, and include clear terms about the responsibilities of all parties involved.⁸ Medical and psychological evaluations are mandatory for both surrogates and intended parents.⁹

The Commission will be funded through government allocations, registration fees, and international grants.¹⁰ It will also be required to submit annual reports and undergo audits to ensure transparency.¹¹ Violations of the law, such as operating unregistered agencies or breaching age requirements, will attract fines or imprisonment.¹² The Bill also provides for a one-year transition period for existing arrangements to comply with its provisions.¹³ Overall, the Surrogacy Bill aims to safeguard the rights and welfare of surrogates, intended parents, and children born through surrogacy, while promoting ethical practices in Nigeria.

Proposals for Improvement

As the House Committee on Healthcare Services takes further legislative action on the Bill, it is incumbent on it and all stakeholders that the Bill is transformed into a piece of legislation that not only accommodates and safeguards the interests of all parties to surrogacy arrangements, but also the children born via surrogacy. While the draftsman is not all-knowing, efforts should be made to close missing gaps that may give room for uncertainties and inefficiencies. To this end, the following improvements are suggested:

1. Intending Parents should be made Legal Parents: A key aspect that the Bill did not address is who becomes the legal parents of a child born via surrogacy. In jurisdictions like the United Kingdom, an intending parent can only assume legal parenthood after obtaining a parental order with the consent of the surrogate.¹⁴ It is suggested that the proposed legislation should expressly recognise the intending parents as the legal parents of a child born via surrogacy from conception as this would remove the need for parental orders. However, the surrogate child may not be put in the custody of the intending parents until they fulfil their obligations under the relevant surrogacy agreement. Further, such custody should be made subject to the best interest of the child.
2. Surrogacy contract should expressly be made enforceable: The Bill should also contain an express provision that makes surrogacy agreements binding on parties. To protect the surrogate and intending parents from exploitation, each party should have independent legal practitioners, provided that all legal fees incurred by the surrogate are covered and payable by the intending parent(s). It should also be provided that a pregnancy arising from a surrogacy arrangement can only be terminated if it constitutes a risk to the life of the surrogate.
3. Eligibility criteria should be fine-tuned: There is a need for an elaborate definition of the eligibility requirements for surrogates beyond the minimum age of 21 specified in the Bill. In addition to this, the proposed law should set an upper age limit and prevent those who have given birth a particular number of times, especially through caesarean sections from acting as surrogates. For instance, according to Yale Medicine, the ideal surrogate should be a healthy woman between the ages of 21 and 42 (preferably younger than 35 years of age), with a history of a normal pregnancy and full-term delivery without complications.¹⁵ Further, while research has not identified the number of caesarean sections considered safe, it has been established that each repeat C-section is more complicated than the last.¹⁶ To this end, it is further proposed that an additional criterion for eligibility as a surrogate should be that the woman must not have delivered babies (whether alive or stillborn) more than four times in total; provided that not more than two of those births were via caesarean section.¹⁷
4. The rights of a child born via surrogacy should be clearly defined: The Bill is silent on the rights of children born via surrogacy in Nigeria. There needs to be clarity on their citizenship status and the provisions of the Child Rights Act should be made to apply with equal force to them. Further, intending parents should be prohibited from engaging in sex selection and they should be compelled to accept and cater for a child born via surrogacy notwithstanding his sex or disability.
5. The powers and functions of the Commission should be revisited: The Commission should be empowered to revoke the licenses of surrogacy agencies or organisations in deserving cases. Further, it should be imbued with the power to enforce the law and regulations made thereunder and prosecute offenders. Furthermore, the dispute resolution function of the Commission should be properly delineated. It is suggested that while it should be the first port of call, parties who are aggrieved with its decisions should have the right to ventilate their grievances before the High Court of a State.
6. Review of the organisational structure of the Commission: It is submitted that the current membership of the Commission is best suited for the Board which a chairman should head. The role of the Board should be supervisory and its powers and functions should be clearly defined. On the other hand, the Registrar-General of the Commission should see to the day-to-day running of the Commission and render accounts to the Board. Furthermore, the financial provisions of the Bill should be incorporated into the same part of the Bill housing the provisions for the Commission and its Board. Finally, the National Agency for the Prohibition of Trafficking in Human Persons should be represented on the Board of the Commission, since vulnerable women are often trafficked and exploited in the course of surrogacy arrangements.
7. The prohibition of commercial surrogacy should be defined more precisely: The provisions prohibiting commercial surrogacy should be fine-tuned to remove uncertainties. By receipt of any payment, benefit, or consideration in exchange for arranging a surrogacy, acting as a surrogate, or entering into a surrogacy arrangement, does the draftsman also mean reasonable compensation received by the surrogate amounts to commercial surrogacy? It is proposed that only profit-oriented transactions should be prohibited.
8. Advertisement should be regulated: The Bill is silent on how to place advertisements for surrogacy services, unlike what is obtainable in similar statutes in other jurisdictions. How surrogacy arrangements are advertised should be in line with the guidelines of the Commission.
9. Upward review of penalty for operating surrogacy clinic without a license: The extant prescription of a One Million Naira fine is a slap on the wrist and may not deter likely offenders. The penalty should be increased considerably

Conclusion
The proposals outlined in this article are not exhaustive but represent crucial considerations for refining the Surrogacy Bill 2024. Stakeholders and legislators must continue to engage constructively to create a robust legal framework that addresses the multifaceted challenges and ethical dilemmas surrounding surrogacy arrangements in Nigeria.

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Footnotes

1. Sections 1 of the Bill.

2. Section 2 of the Bill.

3. Section 5 of the Bill.

4. Sections 2 and 3 of the Bill.

5. Section 7 of the Bill.

6. Section 9 of the Bill.

7. Section 10 of the Bill.

8. Sections 11 and 12 of the Bill.

9. Section 13 of the Bill.

10. Section 15 of the Bill.

11. Section 16 of the Bill.

12. Section 18 of the Bill.

13. Section 19 of the Bill.

14. Department of Health and Social Care, ‘The surrogacy pathway: surrogacy and the legal process for intended parents and surrogates in England and Wales’ (Department of Health and Social Care, 25 April 2024) https://www.gov.uk/government/publications/having-a-child-through-surrogacy/the-surrogacy-pathway-surrogacy-and-the-legal-process-for-intended-parents-and-surrogates-in-england-and-wales accessed 28 November 2024.

15. Yale Medicine, ‘Surrogacy: Overview’ (Yale Medicine) https://www.yalemedicine.org/conditions/gestational-surrogacy#:~:text=The%20ideal%20surrogate%20falls%20within,full%2Dterm%20delivery%20without%20complication accessed 27 November 2024.

16. Yvonne Butler Tobah, ‘Repeat C-sections: Is there a limit?’ (Mayo Clinic) https://www.mayoclinic.org/tests-procedures/c-section/expert-answers/c-sections/faq-20058380 accessed 27 November 2024.

17. Dominic Hernandez, ‘You Asked: How many C-sections can a woman have?’ (Texas A&M Health, 9 August 2017) https://vitalrecord.tamu.edu/asked-many-c-sections-can-woman/#:~:text=%E2%80%9CSo%2C%20every%20patient%20is%20different,the%20maximum%20number%20of%20three.%E2%80%9D accessed 27 November 2024.