News & Publications

By: Nwaforji Fabian C. Esq

Contracts are an integral and very necessary part of our twenty-first-century progression. This is not just about the highly developed economies where they are used to writing contracts and/or agreements for just about everything. Nigeria should be one of those countries emphasizing on the need for legal contracts.

Many women have worrisome medical conditions which put their lives at risk when looking for a baby. This Infertility could be due to the following: Polycystic Ovary Syndrome (PCOS), Fibroid, Post Surgery complications, etc.  Looking at the nature and gravity of these medical conditions, you might consider agreeing with me that surrogacy is such a good idea. The astonishing part is: many couples agree to surrogacy which is more of an alien culture to us but has been adopted and embraced while it is intriguing also that lots of people with such conditions are willing to pay huge amounts of money to ensure the process runs smoothly and essentially fail to draft legal contracts in this regard.

But the question here is: Under what terms and conditions? Would it be favourable to the parties concerned/involved? Has it been fully embraced in Nigeria? Of course, the answer is YES. Renowned Nigerians and Nigerian celebrities such as Ini Edo, and Folasade Tinubu – Ojo ( First daughter of the All Progressive Congress(APC) Presidential Candidate – Bola  Tinubu ). Nike Oshinowo are paradigms who have enjoyed/are enjoying the benefits of surrogacy. Note that this article is aimed at pointing out reasons on why there should be legal contracts for surrogacy in Nigeria:

Surrogacy is an arrangement/agreement for childbearing/delivery between a woman who carries and delivers the baby and the intended parent(s).  This woman is usually called the surrogate mother. The process of the surrogate mother carrying the child and giving birth to the child is enabled by a technology called Assisted Reproductive Technology.

Let us talk about the different kinds of surrogacy arrangements available as at today

The genetic involvement of the surrogate mother’s fertilized egg or embryo and the donor/intended father’s semen through artificial insemination or sexual intercourse (IN VIVO FERTILISATION). Surrogacy via this means is called traditional surrogacy.

The process where there is no genetic involvement of the surrogate mother’s embryo or fertilized egg with the sperm or semen of the intended father. Instead, in this form of surrogacy, the male parent fertilizes an egg from the female parent with his sperm or semen. The fertilized egg or embryo from this fertilization is hence put in the womb of the surrogate mother to grow and be delivered (IN VITRO FERTILISATION). Surrogacy via this means is called Gestational surrogacy.

Surrogacy arrangements whether for monetary gains or not should be legally documented. when agreements are based solely on monetary terms, the surrogate mother accepts some amount of money as a form of compensation in addition to being reimbursed for her pregnancy- and surrogacy-related expenses that are incurred throughout the surrogacy process. This kind of surrogacy arrangement is called Commercial surrogacy.

REASONS WHY CONTRACT AGREEMENTS ARE IMPORTANT IN THE SURROGACY PROCESS:

• Adequate provision /care for the surrogate mother and the child to be born: Though the intended parent(s) are eager to have someone carry their child, they must make adequate provision for the surrogate mother who in turn has to ensure that all required of her is done to deliver a healthy baby. From registering at the hospital for pre-natal care once she is confirmed pregnant, to eating healthy diets, taking administered drugs by the gynecologist, and refraining from strenuous work that might harm the foetus/growing baby.
• Resolution of Parental Rights: This will clearly state how the intended parents will be established as the legal parents while the surrogate is relieved of all possible rights and responsibilities regarding the child.

• Confidentiality:  It all depends on the parties involved.

• For prevention of disputes between the surrogate mother, the intended parent(s), and the parties involved.

• To serve as evidence that the contract was not made under duress but consented to by all parties.

• Where there is a breach of contractual agreement. In the event that either of the parties, be it the surrogate mother, intended parent(s) or even doctor(s) involved in the surrogacy process breaches the contract by not fulfilling their obligations, it becomes binding that compensation is made to the other party/parties.

An example is a case of Shullam and Gamaliel Onyemaobi (A United States-based couple) against Gift Chinyere Iheanyi Solomon who was threatened by the couple through the Interpol and the Nigerian Police to illegally and forcefully seize a set of twins in her custody. The surrogate mother claimed to have abandoned the twins without financial support from the intended parents while the latter stated that it was the former who took the twins out of their reach and also violated the surrogacy agreement by having sexual intercourse with her lover.

In this scenario, the contract agreement will clearly point out the defaulter and ensure that the defaulter is sanctioned or made to face the law while the other party gets compensated for the breach of contract.

The vital elements which make it necessary to draft a contract agreement between a surrogate mother, intending parent(s), and the medical practitioner or institution are as follows:

• An offer made by the intended parent(s) who is/are the offeror(s) to the surrogate mother/third party through a medical agency.

• An acceptance by the surrogate mother who is the offeree.

• Consideration is something of value in exchange for the services of the surrogate mother and/or other parties involved.

CONCLUSION:

It is a key concern that individuals seeking to draft a surrogate contract go through the right channels. i.e. the involvement of a legal practitioner or law firm. The idea, behind the enforceability and validity of a drafted surrogate contract by a competent authority, is to set boundaries, prevent disputes, and serve as a form of protection for the parties involved.

I seek to be as simple and precise as possible as to the need for the government’s endorsement of the Bill for surrogacy in Nigeria. I strongly suggest that the Bill for surrogacy (The 2016 Assistive Reproductive Technology (Regulation) which has not been passed by the Legislatures, be implemented and passed into law; even though the law on surrogacy in Nigeria is pending, it still does not mean that surrogacy is prohibited nor legally acknowledged.