- Introduction
Surrogacy, an assisted reproductive technology (ART) where a woman carries a pregnancy on behalf of another individual or couple, has emerged as a viable option for many Nigerians facing infertility. In a society where immense cultural and social value is placed on procreation, surrogacy provides a pathway to parenthood for those who would otherwise be unable to have children. However, the practice in Nigeria exists in a significant legal and regulatory vacuum. In other words, it is an arrangement where a woman (the surrogate) agrees to carry and deliver a child for another person or couple (the intended parents). In Nigeria, surrogacy is increasingly sought after due to rising infertility rates and cultural pressures to bear children. However, the absence of a comprehensive legal framework has led to ethical, legal, and social challenges. The practice in Nigeria exists in a significant legal and regulatory vacuum. This article examines the current state of surrogacy in Nigeria, analyzing the legal framework (or lack thereof), the inherent challenges, and the pressing need for comprehensive regulation to protect all parties involved. This article examines the current state of surrogacy in Nigeria, analyzing the legal framework (or lack thereof), the inherent challenges, and the pressing need for comprehensive regulation to protect all parties involved.
- The Concept of Surrogacy
Surrogate parenthood has its roots in biblical times with the relationship between Jacob, Rachael, Leah, Bilhah and Zipah and the four sons born among them.[1] In the late 1970s the first recorded case[2] of assisted reproduction through surrogacy was contested in the English courts and this development has led to several debates on surrogacy as a means of reproduction. Surrogacy could be either genetic (partial) or gestational (full).[3] It is genetic where the male parent impregnates the surrogate mother through artificial insemination or sexual intercourse,[4] while surrogacy is gestational where the male parent fertilizes an egg from the female parent and the fertilized egg is placed in the womb of the surrogate mother to grow and be delivered (in vitro fertilization).[5] Surrogacy agreements can be either commercial or non-commercial (altruistic), and it could be agreed within a jurisdiction or internationally (across borders).[6]
In other words, surrogacy is typically categorized into two forms: traditional surrogacy, where the surrogate mother uses her own egg, and gestational surrogacy, where an embryo created using the intended parents’ or donors’ gametes is implanted into the surrogate. A surrogate mother is a woman who, based on an agreement before pregnancy, carries a child and relinquishes all rights to and over the child to another person after giving birth to the child.[7] While countries like the United States, India, and the United Kingdom have well-established surrogacy laws, Nigeria lacks specific legislation to regulate the practice, creating a legal vacuum that leaves stakeholders vulnerable to disputes and exploitation.
The debate around the acceptability of surrogacy in many communities centres on the exploitation of those women who serve as surrogate mothers and the commercialization of babies.[8] Different countries adopted different approaches to the regulation of surrogacy. Some countries expressly prohibited surrogacy;[9] some permit and regulate only non-commercial surrogacy; some countries allow all forms of surrogacy; while other countries leave surrogacy completely unregulated.[10] In societies where surrogacy is allowed the consent of the surrogate mother is a yardstick to determine ethical compliance.[11] The argument is that surrogacy should be considered in the same way as any other form of labour and regulation should be in form of protection against exploitation. However, it has been noted that a woman has a right to privacy and reproductive autonomy under international human rights law and, as such, attempts to limit these rights must be reasonably justified.[12] Nigeria is among the last category of countries where surrogacy is left unregulated.
- Framework for surrogacy in Nigeria: A Regulatory Void
While surrogacy is not expressly prohibited in Nigeria, it is also not legally acknowledged. As such, if a person engages in surrogate motherhood or enters into a surrogate contract in Nigeria, such a person cannot be said to have committed a crime. The underlying problem, however, is in terms of legally defining the legal parentage of the child as well as the contractual rights and duties of parties to the surrogate agreement. Presently there is no judicial pronouncement on this form of contract in Nigeria, but if a dispute arises out of a surrogate agreement and such dispute is presented before a Nigerian court, deciding such a case could prove problematic. There is a likelihood of a biased judgment based on cultural sentiments. The bias is likely to arise from socio-cultural influences which view conception through artificial means unacceptable.[13]
With no legislative measures to regulate surrogacy in Nigeria, most artificial reproductive technology clinics in Nigeria base their operations on the Human Fertilization and Embryology Authority Guidelines of the United Kingdom.[14] However, the Nigerian Law Reform Commission has recommended that any child born to a woman as a result of artificial insemination or implantation of an embryo in the body of a woman while she is in a marriage must be regarded as a child of the husband.[15] The Commission further recommends that where a child is born under a surrogacy agreement, the commissioning parents should formally adopt the child, even if the child is the biological child of the commissioning parents.[16] The rationale behind this is to prevent the surrogate mother from returning to claim the child.[17] A Bill for the establishment of a Nigerian Assisted Reproduction Authority was presented before the National Assembly in 2012 and was read for the second time on 2 May 2012.[18] This Bill, however, was not passed into law as it did not enjoy the support of the majority of the legislature. This legislative void creates a precarious environment for intended parents, surrogate mothers, and the children born through these arrangements.
A key issue arising from this lack of a legal framework is the legal status of the child. Under Nigerian family law, the woman who gives birth to a child is recognized as the legal mother. This principle, known as mater semper certa est (the mother is always certain), complicates gestational surrogacy, where the surrogate has no genetic link to the child. Without a law to transfer parental rights, the intended parents may face significant legal hurdles in establishing their parenthood, leading to potential disputes and the child’s legal limbo.[19]
Furthermore, the absence of specific laws means that surrogacy agreements are currently treated under general contract law principles. While a contract may be deemed valid if it meets the criteria of offer, acceptance, and consideration, its enforceability in a Nigerian court is highly uncertain. A court might be hesitant to enforce such a contract, especially if it is perceived to be against public policy or cultural norms. This leaves all parties, particularly the surrogate and the intended parents, vulnerable to breaches of agreement and potential exploitation.[20]
In the absence of any legal and regulatory framework for surrogacy in Nigeria, the Human Fertilisation and Embryology Act[21] of the United Kingdom is the basis of regulation of ART procedures in most ART clinics in Nigeria. The use of this law is premised on the fact that Nigeria, as a commonwealth country, has the roots of her common law in the United Kingdom. Section 45 of the Nigerian Interpretation Act[22] allows statutes of general application that were in force in England on or before 1 January 1900 to be directly in force in Nigeria, so that where there is a lacuna in Nigerian law, English law may be applied. However, since there is no existing law in England before 1900 which could be applied directly to resolve disputes related to surrogacy in Nigeria, the refusal by a fertility clinic to follow the guidelines of the Human Fertilisation and Embryology Act cannot be said to be in contravention of any law. Such a law will only serve as persuasive authority and will not be binding in Nigeria.
To be eligible to be a surrogate mother, a woman must be between 21 and 45 years of age and no woman may act as surrogate for more than three times in her life-time.[23] Likewise, no surrogate shall more than three times undergo embryo transplant for the same couple. If the embryo transplant fails, the surrogate may agree on a fresh financial agreement to undergo another transplant provided it is not in excess of the limit of three.[24] A surrogate should be tested for all diseases that may endanger the child, and declare in a prescribed format that she is a surrogate and as such register for all medical procedures relating to the child.[25] A surrogate may be obtained through a semen bank or by placing advertisements which must not be discriminatory in nature. ART clinics are prohibited from placing advertisements for clients to be surrogates.[26]
- Challenges of Surrogacy in Nigeria
There are several ethical, cultural, social and legal issues surrounding surrogacy in Nigeria. [27]Surrogacy is not a topic discussed publicly in Nigeria due to the cultural and social perceptions surrounding infertility. However, according to PM News, young ladies across Nigeria advertise their availability as surrogate mothers by registering on the internet[28] and providing their full details and states of residence in Nigeria. Similarly, agencies in Nigeria advertise on the internet to match surrogate mothers with commissioning parents.[29]
The legal question surrounding the surrogacy agreement in Nigeria centres on the legal parentage of the child and the surrogacy agreement itself. While several countries have taken positions on surrogacy, by prohibiting, allowing without commercial value or fully allowing it with commercial value, Nigeria is yet to take a legal standpoint on the issue.[30] Thus, the lack of acknowledgment of the practice of surrogacy in Nigeria has led to a lack of regulation of the practice which leaves surrogate mothers vulnerable to exploitation and commissioning parents vulnerable to blackmail.
Concerns have been expressed over abuse related to surrogacy in Nigeria. One Motunrayo Joel was reported to have posed as a young woman interested in selling her ova, and she recounted how several fertility clinics in Nigeria harvested ova and paid the donors.[31] She reported the high rate at which Nigerian ladies sell their eggs at various fertility clinics. Her report revealed that these women were not properly counselled on the health risks involved in donating eggs, especially in cases of recurrent donation.[32] Cases of quack doctors carrying out surrogacy and other in vitro fertilisation procedures have also been reported and are a cause for concern by the genuine fertility practitioners.[33]
The increase in ‘baby factories’ has been linked to surrogacy and this has heightened the level of stigma attached to surrogacy as an option for becoming a parent.[34] It has been established that the prevalence of baby factories persisting in Nigeria fulfils two needs: first, the conviction of teenage girls to give up their unwanted babies for financial gain and to avoid social stigma; and, second, the need for infertile couples to fulfil social obligations by having a baby.[35] Some of the babies from these baby factories are trafficked for the purpose of international adoption or used for sacrifice at shrines. [36]
The increased patronage of baby factories by infertile couples could be attributed to the social stigma publicly associated with adoption and surrogacy in Nigeria.[37] The BBC reported that a common strategy for an infertile woman is to pretend to be pregnant or be fooled into believing she is pregnant, and then buying a baby from one of these baby factories.[38] Makinde et al contend that the rapid increase in baby factory operations in Nigeria is a threat to the social acceptance of surrogacy in the country as many might be confused as to the difference between baby factories and surrogacy. It appears that in the case of Nigerian baby factories, while some females give their free consent, others, especially teenage girls, are coerced or forced against their wishes to be surrogate mothers.[39]
Before a surrogacy agreement is concluded, there should be a counselling session with both the surrogate mother and the commissioning parents where all parties are educated on their rights and responsibilities. A surrogate mother has the right to be fully aware of the restrictive conditions that may accompany the pregnancy, by having to refrain from certain habits such as drinking and smoking. She has the right to be aware of possible physical, emotional and hormonal changes likely to occur during pregnancy.[40]
- Way Forward
- Establishing a Legal Framework: A dedicated law must be enacted to govern all aspects of surrogacy. This law should define the different types of surrogacy (gestational vs. traditional; altruistic vs. commercial) and clearly outline the rights and responsibilities of the intended parents, the surrogate, and the child. It must also provide a clear mechanism for the transfer of parental rights, circumventing the challenges posed by the principle of mater semper certa est.[41]
- Regulation of Clinics and Practices: A regulatory body, such as a Surrogacy Regulatory Commission, should be established to oversee and license all ART clinics and practitioners. This body would set and enforce medical and ethical standards, ensuring the health and safety of surrogates and children. It should mandate comprehensive medical and psychological screening for all parties and require access to counseling and legal advice.
iii. Protecting the Surrogate: Any regulation must prioritize the protection of the surrogate. This includes ensuring informed consent, fair compensation for expenses (in the case of altruistic surrogacy) or services (in the case of commercial surrogacy), and access to adequate healthcare and psychological support throughout the pregnancy and post-partum period. The law should prevent the exploitation of women and the commodification of their bodies.[42]
- Safeguarding the Child’s Rights: The paramount consideration in any surrogacy arrangement must be the welfare and best interests of the child. A new legal framework should ensure that the child’s legal identity is established from birth and that their rights to care, education, and inheritance are protected.[43]
- Conclusiona
The increasing prevalence of surrogacy in Nigeria demands an urgent and robust legal response. Without regulation, parties are left exposed to legal uncertainty, exploitation, and social stigma. Comprehensive legislation will not only protect the interests of surrogate mothers, intended parents, and children but will also align Nigeria’s practices with international standards for reproductive rights. Surrogacy in Nigeria represents a beacon of hope for many struggling with infertility. However, its current unregulated state leaves all stakeholders in a vulnerable position. The absence of a clear legal framework has given rise to significant ethical, social, and medical challenges. To ensure that surrogacy remains a safe and ethical path to parenthood, the Nigerian government must prioritize the development and enactment of a comprehensive regulatory framework. Such a framework would not only protect the rights and welfare of surrogates and intended parents but, most importantly, safeguard the future and best interests of the children born through these arrangements.
Disclaimer:
This article is provided for informational and educational purposes only and does not constitute legal, financial, or investment advice. Readers are encouraged to consult with qualified professionals before making any decisions based on the content of this blog. While we strive to ensure accuracy, we make no guarantees regarding the completeness or reliability of the information presented.
[1] Genesis 16: 1-16 and Genesis 30: 1-13.
[2] A v C (1978) 8 Fam Law 170 [1985] FLR 445.
[3] HV MacLachlan ‘Surrogate motherhood: Beyond the Warnock and the Brazier reports’ (2005) 11 Human Reproduction and Genetic Ethics 3
[4] Blauwhoff & Frohn (n 14) 215.
[5] MacLachlan (n 15) 3.
[6] Blauwhoff & Frohn (n 14) 216.
[7] law’ in C Paulussen et al (eds) Fundamental rights in international and European law (2016) 215.
[8] DR Bromham ‘Surrogacy: Ethical, legal and social aspects’ (1995) 12 Journal of Assisted Reproduction and Genetics 509 510.
[9] Ibid
[10] A Finkelstein et al ‘Surrogacy law and policy in the USL A national conversation informed by global law making’ (2016) Report of the Columbia Law School Sexuality and Gender Law Clinic 11.
[11] Finkelstein (n 21) 25.
[12] J Tobin ‘To prohibit or permit: What is the (human) rights response to the practice of international commercial surrogacy?’ (2014) 63 International and Comparative Law Quarterly 317 344.
[13] AS Jegede & AS Fayemiwo ‘Cultural and ethical challenges of assisted reproductive technologies in the management of infertility among the Yoruba of South-Western Nigeria’ (2010) 14 African Journal of Reproductive Health 115 121.
[14] JO Fadare & AA Adeniyi ‘Ethical issues in newer assisted reproductive technologies: A view from Nigeria’ (2015) 18 Nigerian Journal of Clinical Practice S57 S59.
[15] Law Reform Commission ‘Reform of Nigerian family law’ III, 15
[16] Law Reform Commission (n 68) 16.
[17] M Attah Family welfare law in Nigeria (2016) 215
[18] House of Representatives ‘Votes and proceedings’ (2 May 2012) 97 http://nass.gov.ng/document/download/5555 (accessed 29 July 2025).
[19] ] C. Chukwuma-Agbodike, “Surrogacy Practice in Nigeria: Navigating the Current Legal Landscape,” Irish International Journal of Law, Political Sciences and Administration, vol. 5, no. 1, 2024.
[20] “Surrogacy in Nigeria: Can Surrogacy Contracts and Agreements be Enforced?,” Legal 500, July 9, 2024, https://www.legal500.com/developments/thought-leadership/surrogacy-in-nigeria-can-surrogacy-contracts-and-agreements-be-enforced/.
[21] Human Fertilisation and Embryology Act 2008 sec 59.
[22] Interpretation Act Cap I23 Laws of Federation of Nigeria 2014.
[23] Assisted Reproductive Technology (Regulation) Bill 2016 (ART Bill). Clause 34(5).
[24] ART Bill clause 34(9).
[25] ART Bill clause 34(8).
[26] ART Bill clause 34(7).
[27] OJ Umeora, UN Nzerem & JN Eze ‘What drives grand multiparous women in rural Nigeria to seek treatment for infertility’ (2013) 12 African Journal of Medical and Health Sciences 15.
[28] www.surrogatefinder.com accessed 29 July, 2025).
[29] Ibid
[30] Umeora et al (n 8) 107.
[31] M Joel ‘Ovum trading: Inside Nigeria’s multi-million naira human egg business’ Punch 9 August 2015 https://punchng.com/ovum-trading-inside-nigerias-multi-million-naira-human-egg-business/(accessed 29 July 2025).
[32] Ibid
[33] C Obinna ‘Without regulation, IVF treatment is unsustainable’ Vanguard 6 October 2014 https://www.vanguardngr.com/2014/10/without-regulation-ivf-treatment-unsustainable/(accessed 10 October 2018)
[34] OBA van den Akker Surrogate motherhood families (2017) 218.
[35] OA Makinde et al ‘Baby factories taint surrogacy in Nigeria’ (2015) Reproductive BioMedicine Online 1 doi: 10.1016/j.rbmo.2015.10.001.
[36] Ibid
[37] OA Ojelabi, P Osamor & BE Owumi ‘Policies and practices of child adoption in Nigeria: A review paper’ (2015) 6 Mediterranean Journal of Social Sciences 75 77.
[38] ibid
[39] Makinde et al (n 118) 4.
[40] Ibid
[41] “Surrogacy in Nigeria: Can Surrogacy Contracts and Agreements be Enforced?,” Legal 500, July 9, 2024, https://www.legal500.com/developments/thought-leadership/surrogacy-in-nigeria-can-surrogacy-contracts-and-agreements-be-enforced/.
[42] D.A. Onasanya and O.I. Oshinowo, “Perspectives on Surrogacy Practices and Law in Nigeria: A Call for Policy Intervention,” ResearchGate, 2024.
[43] C. Chukwuma-Agbodike, “Surrogacy Practice in Nigeria: Navigating the Current Legal Landscape,” Irish International Journal of Law, Political Sciences and Administration, vol. 5, no. 1, 2024.