With cases of infertility hitting the roof, most couples have chosen the part of surrogacy to become proud parents. However, in order to protect surrogate mothers, commissioning couples and the children involved, experts say surrogacy law must be in to stem the menace of illegal practices like the proliferation of ‘baby factories’ and illegal child adoption. CHIJIOKE IREMEKA writes
Rising cases of infertility have denied most homes the joy of parenting. For most women, motherhood is a dream that eludes them and they can do anything to have the appendage – mother.
The ability to conceive and carry a pregnancy to term is an impossible mission some women have longed for and a luxury they cannot enjoy due to circumstances beyond their control.
However, when push comes to shove and societal pressure becomes unbearable, some embrace a capital-intensive option – surrogacy.
While some women can conceive naturally, others cannot, which is where bio-technology comes in, and on it surrogacy thrives.
Assisted conception has made many things possible, especially for a woman (surrogate mother) to carry and give birth to a baby for another, who is unable to conceive and carry a child.
A surrogate mother is required after childbirth, to hand over her newborn to the woman who commissioned her (paid).
Though commercial surrogacy is practised in the country, it is largely unregulated, thereby creating room for certain child-related crimes and abuses.
Ripped off by surrogate mother
45-year-old, Efe Omoh, who hails from Auchi in Edo State, would have been fairly and justly treated in a deal that got her fingers burnt if there were rules and regulations governing the practice of surrogacy in the country.
Omoh, who had been married for 13 years without a child, commissioned a lady simply identified as Jessica, to carry a pregnancy to term for her.
Omoh was led to Jessica (the surrogate mother), who lives in a slum beside the Festac Linkbridge in the Amowo-Odofin Local Government Area of Lagos State, by an auxiliary nurse that works in a clinic where she visits regularly.
According to Omoh, the nurse, identified as Kemi for safety reasons, brokered the meeting between her and Jessica, and they discussed the terms and conditions of the contract.
“After discussion, we reached an agreement. Jessica gave me her conditions and we agreed on N100,000, to be paid in two instalments,” the Auchi-born trader said.
Omoh told Punch Healthwise that it was agreed that a first instalment of N40, 000, would be paid, followed by the balance of N60,000 in the ninth month of her pregnancy.
It was learnt that it was agreed commissioning mother would take care of the hospital bills, antenatal care, routine drugs, and delivery among other things that may be considered necessary during the pregnancy.
“She was told that my husband would sleep with her. Though it wasn’t easy for me but I managed to convince myself by looking at the joy that awaited me,” she recalled.
Omoh told Punch Healthwise that it was also agreed that upon delivery, Jessica would breastfeed the baby for only a month before handover.
However, while still excited about the prospect of being a mother, and eager to break the good news to her husband, a problem suddenly reared its head.
She narrated, “When I got home and told my husband about my deal with Jessica, he was curious to know how I met her. I said it was through a nurse that I met at the hospital.
“I told him that I overheard the nurse discussing surrogacy with someone and approached her later to find out more about it, only for her to reveal that she had helped a couple to have a child after they paid N70,000.
“My husband asked how the lady involved is expected to get pregnant and I told him it would be with his sperm and he flared up. He told me to forget about it to avoid scandal. It took me weeks to convince him and he accepted. The initial deposit of N40,000 was paid as agreed.
“Having passed through that hurdle, we started calculating her ovulation cycle to know when my husband will meet with her because I didn’t want it to happen more than twice. Luckily, we achieved pregnancy on the second try.
“On my own, I went the extra mile to provide other things for Jessica so that the baby in her womb would be well nourished. Each time I visited, I would give her beverages and food.”
But due to a lack of legal backing and with the pregnancy deal shrouded in secrecy with no binding agreement written and signed between the surrogate mother and the commissioning mother, a huge problem would later arise.
Tearfully recollecting her ordeal, Omoh said she was blinded by trust and put her fate in the hand of a total stranger.
She said, “I paid the first batch of N40,000 after the gentleman’s agreement was reached on July 20, 2022, while the balance of N60,000 was paid exactly on the ninth month, March 14, 2023. I was happy and looked forward to the good news. I bought clothes for the baby, whom I had already named Comfort.”
Joy turned sorrow
According to Omon, when Jessica gave birth, everyone in the know was overjoyed but the crisis started the moment Jessica appealed to extend the agreed breastfeeding period by one month.
“Jessica gave an excuse that her breast was full and heavy and was giving her pain. She said if I take away the baby at that moment, the pain would be severe. I understood and accepted,” she added.
However, when the one month elapsed, it dawned on Omon that Jessica was unwilling to release the child.
According to her, “Jessica said the baby has a striking resemblance to her and that she would feel empty if the baby is taken away from her. She pleaded to stay with the baby because she was already fond of her.
“We appealed to her to let go but she refused to change her mind. After several visits to her place, she still maintained her position. I was more shocked when Jessica refused to refund the money she was paid. I knew I had lost out. I knew she had played a fast one on me. I was hurt, traumatised and felt cheated not because of the money, but that I still had no child to call me a mother.”
The still distraught woman told our correspondent that it was at the point when Jessica threatened to get the police involved, that she accepted her fate and moved on.
With a pained expression, Omon said, “I don’t know how I managed to survive. I lost weight overnight and cried for days. I am still looking up to God to wipe my tears.”
Asked why she did not go through the normal process of child adoption, she said, “Adopting a child in Lagos is not an easy task. There are several protocols and they are very tedious.”
Meanwhile, surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to deliver a baby for a couple or person, who will become the child’s parent(s) after birth.
Receiving money for the arrangement is known as commercial surrogacy. however, it is meant to be guided by law in saner clime.
Omon’s experience is what many Nigerian women desperately looking for children go through on a regular basis in the absence of any legal framework to spell out the terms of the surrogacy agreement
The story of another commissioning mother, who opted to be referred to as Blessing, due to fear of stigmatization, is quite heartrending.
The native of Ibusa in the Oshimili North Local Government of Delta State has been married for 16 years but has no child.
The 49-year-old caterer, who lives in the Orile area of Lagos, told our correspondent that she commissioned a woman known as Gloria, through an agent, to have a child for her.
And like Omon, she was also swindled and the surrogate mother made away with the newborn.
She recounted, “I met Gloria through an agent, Johnson, who said he helps people who can’t get pregnant to have babies. I met him in one of the clinics that I visited in Orile while seeking for a solution to my childlessness.
“It was after a nurse at the hospital confirmed that she knew Johnson very well that I went on with the deal. He offered to help me get a willing surrogate mother but insisted on a commission of N20,000.
“I accepted and we exchanged telephone numbers. He contacted me 11 days later to say he has found someone and we fixed a date and meeting point.
“I saw the lady, Gloria, and we agreed on N180,000. I didn’t find it difficult to convince my husband to sleep with the lady and she got pregnant on the first try. I registered her for antenatal in a good hospital. We took care of her from the first month till she gave birth. She was paid once and it was through a bank transfer.
“Gloria was supposed to exclusively breastfeed the baby for three months before handover, but when it was time for us to take custody, she refused to let the baby go.
“She said the child looked like her late mother and claimed her mother reincarnated. I reminded her that we paid for her services and had an agreement that she would give us the baby after three months. But she asked me and my husband to produce a written agreement.
“I had to call the agent involved to speak with her but she was adamant. At a point, we couldn’t reach Gloria again. Johnson, the agent couldn’t also get across to her. We later discovered that she had disappeared with the baby. There was nothing we could do about it and didn’t want to join issues with the Lagos State government.
Factors fuelling illegal surrogacy
Speaking on the factors fuelling illegal surrogacy and the proliferation of baby factories in the country, a Consultant Gynaecologist and Surgeon at the Epe General Hospital Epe, Lagos State, Dr. Cynthia Okafor said for most women, marriage is not complete without a child.
She noted that this is coupled with the African belief that a woman’s marriage is not secured until she is able to have her own children.
In most cases, she noted, the husband’s family mounts undue pressure on the wife and would want to bring another woman into the home to bear children.
“This makes most women become desperate and end up taking decisions that would hurt and hunt them later. They go into illegal surrogacy and child adoption,” she added.
The gynaecologist noted that IVF treatment clinics see adoption and surrogacy as a way of mitigating the psychological effects of infertility among women, despite the social stigma associated with it.
According to Dr. Okafor, social stigma contributes to the thriving business of ‘baby factories’ in Nigeria, where women go to buy babies and present them to people as their own.
Lagos surrogacy law
Reacting to the trend, the Chairman, Lagos State House of Assembly Committee on Health, Hon. Shokunle Hakeem, said there is a need to enact laws to regulate human fertilisation and surrogacy procedure and practice in the state.
Speaking at the public hearing on the proposed ‘Human Fertilisation and Surrogacy Regulatory Bill’ before the House, he said the law is necessary considering the controversies and barrage of litigations associated with human fertilisation and surrogacy-related matters in the state.
According to him, “Let me assure you today that this bill under consideration if eventually passed into law, would provide a legal framework to regulate the procedure and practice of surrogacy, monitor the procurement, processing, storage, distribution, use of gametes and embryos in the state to prohibit commercial exploitation.
“Secondly, the proposed law would also ensure the best interest and right of any child born out of surrogacy are protected in accordance with the provision of Child’s Right Law of Lagos State.”
Lagos surrogacy law will protect stakeholders -Reproductive Endocrinologist
Corroborating his views, the President, Africa Reproductive Care Society, who is also a Professor of Anatomy and Consultant Reproductive Endocrinologist, Oladapo Ashiru, said the surrogacy law is good and would engender more professionalism in the practice.
The Managing Director, Medical Art Centre, Ikeja, Lagos, affirmed that the Lagos State government consulted the body of fertility experts and they made their inputs into the surrogacy law.
He gave an assurance that the law would protect the stakeholders in surrogacy, adding that it would also allow all the professionals in the reproductive health practice, – endocrinologists, embryologists and nurses, to do their jobs professionally.
Prof. Ashiru said, “We are not saying that others will not join the profession, we are saying that the certified practitioners will be allowed to work and will be certified by the body and the government. The same recommendation we gave to Lagos, was what we sent to the National Assembly for the law at the federal level.
“So be assured that with the law in place, the material lost, exploitations and sharp practices would be addressed.”
Meanwhile, a Consultant Gynaecologist, Dr. Abayomi Ajayi, wondered why people would patronise quacks instead of professionals for surrogacy agreements.
Dr. Ajayi, who is also the Managing Director, Nordica Fertility Centre, Lagos, said a lot of people go into all forms of child trafficking and call it surrogacy.
“Surrogacy is part of IVF treatment and how do you want to go into this without visiting professionals? I keep telling people when you are ready to do something, do it the right way. You don’t need to go into things like this without proper documentation and an agreement signed.
“One thing I found is that people are not careful. There are recognised specialist clinics where you can go for this. You can’t be going in for surrogacy without signing a consent form. This is the reason for the exploitations we see today,” he said.
Speaking on the proposed surrogacy law, he said it’s good to have a law governing surrogacy in Nigeria and to control the activities of the people. But I wonder why they made it a surrogacy law instead IVF law because surrogacy is part of IVF treatment.
“We don’t know what they want to do but then, I have made my own input. Lagos State Government sent a letter to top fertility experts to make inputs in the surrogacy law in Lagos. Some of us have given our opinions and contributions to the bill to ensure that the law comes out well.
“I have done my part, I have given them my observations and what I feel should be part of the law. The rest is in their hands. The law is good because it would help to protect the parties in the business. There were cases both in Nigeria and abroad, which led to certain laws and promulgations in those countries.
“When things are happening like this the government and the legal system will make laws to solve the problems but we have not seen this in Nigeria. Our legal system is not catching up, and baby factories are everywhere and all manner of trafficking in person is mistaken as surrogacy.
“For instance, there was a case of an Australian who commissioned a pregnancy in Thailand but that business didn’t end well. It led to legislation. The Australian commissioned this pregnancy and the outcome was a twin.
“When the surrogate mother gave birth to the babies, one had a congenital disorder and the other normal. The Australian then collected the normal baby and left the one with the congenital disorder with the surrogate mother, yet this mother doesn’t need the baby anymore.
“So she cried out to the government and the government collected the baby from her and made a law, banning foreigners from commissioning surrogacy in the country. Of course, you heard about the one that happened in Nigeria and the mother went to a broadcast station to complain, and she was heard.
“So, we need legislation that would curb these things so that anybody that wants to go into commercial surrogacy can be protected by the law, especially the baby.”
Legal framework must protect surrogate agreements
On the legality of surrogacy, a lawyer and Managing Partner, Bezaleel Chambers International, Onyekachi Umah, said much is happening around the world in terms of developing laws and policies to meet the demands of citizens.
“Conversely, little attention is paid to the need to develop the Nigerian family law to accommodate the demands of the modern family in terms of the development of complex families, surrogacy and artificial insemination,” he added.
The lawyer noted that a lacuna exists regarding surrogacy in the laws of Nigeria, which allows for abuse, hence, the need for policy recommendations to provide the legal architecture to protect stakeholders in surrogate agreements.
According to him, “Experts are of the opinion that while surrogacy is a way of bringing solace to infertile couples who desire to have a biological child, surrogacy practices are accompanied by challenges, but if properly regulated to protect the best interests of the child, protect the rights of the surrogate mother and commissioning parents, surrogacy could mean an end to several illegal practices in Nigeria, such as the menace of ‘baby factories’ and illegal adoption practices,” the lawyer said.
On how child adoption should be conducted, he said child adoption is a lawful act in Nigeria, especially when done in accordance with the specified legal framework.
He, however, warned that adopting a child without adherence to the provisions of the law can be likened to kidnapping, human trafficking and a mere waste of time.
Child Rights Act 2003 against surrogacy – Odumakin
The President of the Human Rights Groups, Women Arise for Change Initiative and the Campaign for Democracy, Dr. Joe Okei Odumakin, said, “Generally, Section 30 of the Child Rights Act 2003 is against surrogacy in Nigeria.
According to her, the section says, ‘No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or otherwise deal in a child.’
“This provision clearly frowns at the processes and procedures of surrogacy, even without mentioning the term, surrogacy.
“At this point, it is important to list the elements present in every surrogacy and then compare them with the verbs listed in section 30 of the Child Rights Act 2003, to truly understand the impact of the Child Rights Act on surrogacy in Nigeria and the proposed Surrogacy Law.
“It must be emphasised that the Child Rights Act, protects born and an unborn child. However, laws are written to stem social vices. I am incurably optimistic that the proposed buzz on the surrogacy law will curb child-related crimes in the country.”
Written contract must guide surrogacy – lawyer
Meanwhile, an Abuja-based lawyer and Principal Partner, Lawrence Ndukwe and Co., Emeka Ndukwe, advised parties interested in surrogacy to ensure that there is a written contract in respect of any surrogacy agreement, delineating all rights and obligations of each party.
He advised that surrogacy agreements, like regular contracts, can be enforced accordingly since there is no law prohibiting surrogacy in Nigeria and as long as it has all the major elements of an enforceable agreement.
He said since there is no law regulating surrogacy and no law prohibiting the practice but that every agreement signed by those involved is binding to the parties involved.
The lawyer said there are two major components of agreement signing, and that all the parties involved should ensure it forms part of the agreement to make it enforceable.
“The agreement must be based on offer and acceptance, which involves the exchange of valuables to form the basis for consideration
“Like most jurisdictions, in Nigeria, once a contract satisfies the required elements, it becomes enforceable. Thus, although, there is no law or statute regulating the act of surrogacy in Nigeria, surrogacy contracts and agreements remain enforceable based on offer and acceptance basis,” he emphasized.