Surrogacy as a form of artificial reproductive technology

Surrogacy as a form of reproduction has been the subject of several ethical debates. These range from individual autonomy over a person’s body, the limits of choices regarding reproduction, to whether a child can be subject to transferred responsibility and criticism over the commodification of children in a way that disrupts nature. Some experts have argued that it also involves issues of exploitation of poor and underprivileged women who are important actors in the surrogate world.Footnote ¹¹Infertility can be a challenging experience from an African perspective, where motherhood determines the acceptability of a woman.Footnote ¹²In addition, it has implications for the spiritual, moral, physical, psychological and mental health of parties involved.

Especially for women,Footnote ¹³surrogacy as a component of ART is borne out of a desire to assist individuals to overcome infertility. Surrogacy is a reproductive practice in which intending parent(s) contract or commission a surrogate mother to give birth to a child. It is the process of giving birth to a baby with the understanding that it belongs to someone else and will eventually be surrendered to another parent, with or without financial compensation.Footnote ¹⁴Compensation essentially raises different moral, legal and ethical issues altogether. Scientifically, there are two types of surrogacies, ie partial surrogacy and complete surrogacy.Footnote ¹⁵In a traditional surrogacy, a couple commissions a surrogate mother who conceives through artificial insemination by the father’s semen. The surrogate carries the baby to term and surrenders it to the parents. The surrogate is the biological mother of the child. In a gestational surrogacy, the couple undergoes IVF, and the formed baby is transferred to the womb of the commissioned surrogate who carries the pregnancy to term (the gestation period) and surrenders the baby to the parent. In this case, the surrogate has no biological connection to the child, beyond the services of carrying the pregnancy to term. The phenomenon is increasingly popular now; little was known regarding the extent to which those who can afford it patronize different women for the services. In the increasingly globalized world, with free flow of humans and information, the space has further opened for new doctrines and concepts hitherto unknown to a developing country like Nigeria. The country’s approach to regulating assisted reproductive technology and lack of understanding of the legal and ethical implications and social issues involved inform the uncertainty in the level of participation in most reproductive issues, such as IVF and surrogacy. The legalization or otherwise of surrogacy could serve as a critical response to both economic and social demands, offering potential benefits for intended parents and surrogates. From an economic perspective, a legal framework would regulate the surrogacy industry, opening new pathways for safe, compensated surrogacy arrangements that could offer financial support to surrogates, particularly vulnerable or economically marginalized women, while ensuring legal and ethical standards are strictly adhered to. Altruistic surrogacy, on the other hand, would empower individuals with the legal backing to offer assistance to family members or friends, in fulfilling their parental aspirations in a highly communal society like Nigeria. The lack of a comprehensive legislative framework, as offered by the Assisted Reproduction Authority Bill of 2012, has been feeding the debate for several years as well as creating room for unethical practices and abuses, with the associated complications therefrom.Footnote ¹⁶With the documented failure rate of IVF processes and the attendant issues involved, some women, especially the economically privileged, have resorted to surrogacy, which seems more certain and accurate in terms of outcomes.Footnote ¹⁷

In Nigeria, infertility is traditionally attributed to womanhood. The operation of ART including surrogacy raises issues of inequality, violation of rights to dignity and reproductive autonomy of a woman, since only the economically privileged can engage less privileged women.Footnote ¹⁸Feminist scholars have raised concerns about surrogacy. They interrogate the potential exploitation of one woman’s body for the reproductive purposes of another, and the commercial gains of a highly profitable transaction in assisted human reproduction.Footnote ¹⁹More importantly, Nigerian family law must align with regulations relating to ART in its reconstruction, reform and configuration. Rules relating to parentage especially in the case of surrogacy must be established without leaving same to the whims of magistrates and high court judges. The legal status of the parent and the child is important for several reasons, including determining lineage, citizenship, adoptionFootnote ²⁰and for making health care and other decisions in respect of the child. This conforms with the provision on citizenship under the 1999 Constitution, protection against discrimination or for consideration of healthcare purposes in the best interest of the child. The failure to regulate these areas may result in uncertainty of the legal status of a child from surrogacy. Where there is no subsisting law, the challenges for parents who have contracted this arrangement may be enormous and must go through a complicated legal process to establish parenthood regardless of the surrogacy agreement.Footnote ²¹

Theorizing reproductive governance

Reproduction and its governance are connected to power.Footnote ²²To understand the issues surrounding emerging trends of reproduction in Nigeria, it is essential to engage with the theoretical foundations guiding state regulation of reproduction, given the critical intersections between reproduction and state powers over women.Footnote ²³This section argues that the regulation of reproduction in Nigeria and globally is socially and politically motivated, and is connected to the control of power in every society. The concept of reproductive governance as an analytical tool explains the idea that reproduction is social, biological and political in nature. The social class one belongs to or political class in power ultimately determines the disposition to the regulation of natural reproduction or emerging reproductive processes in the country.Footnote ²⁴It is socially constructed because historically and culturally it is influenced by cultural norms, powers, biological and medical standards. These standards are determined by different actors in communities, such as women or feminist groups, social institutions, dominant religious and cultural norms. Thus, whoever controls the power in a society determines the development of new norms and laws.Footnote ²⁵

Roe v Wade Footnote ²⁶emphasizes that states and policy makers directly and indirectly influence and exert authorities over women’s reproductive autonomy. Examples of such control abound, from abortion regulation across the globe, to contraceptive laws, sterilization laws and child spacing policy.Footnote ²⁷These regulations establish that reproduction is social and political.Footnote ²⁸In the process of exercising such control, states create categories for women and also determine what forms of reproduction are allowed.

Studies of Nigeria’s regulation of reproduction are significant in this respect. The significance of the regulations is that state resources or instrumentalities are either deployed for protection of such forms of reproduction or prohibitions, which can further require resources allocation as well as development of critical legal jurisprudence in achieving such goals. First, the political configuration of Nigeria and indeed the dominant political, religious and social class determines the applicable form of reproduction. This has implications for the direction of the reproduction norm in Nigeria, especially relating to the adoption of emerging health management ideas and ART in the country. Hence, there is a need to examine the national reproductive governance framework of Nigeria. According to Morgan and Roberts, reproductive governance speaks of the mechanisms through which different actors, states, churches, non-governmental organizations (NGOs), etc, use legislative controls, economic inducements, moral injunctions, direct coercion and ethical incitements to produce, monitor and control reproductive behaviours and practices.Footnote ²⁹The governance of reproductive matters is a reflection of priorities and rationales held by the elites.Footnote ³⁰These determine the consequences of reproductive actions of both men and women. Thus, how a state views surrogacy, abortion, IVF and other reproductive issues is determined by the dominant religious, political class and ideology.

Every state differs in its approach to governance of health and reproduction. The political and social considerations vary from South Africa to the USA and China.Footnote ³¹The anti-abortion policy is an example and reflection of the nature of the Nigerian state’s governance over reproduction.Footnote ³²Nigeria substantially has a pro-life approach to abortion. This is largely derived from religious ideologies and objections from Muslims and Christians, and other relevant state actors such as NGOs. However, the general opinion on the operation of the rules according to experts and practitioners has been that the restriction is no longer justified on several grounds including the extent of deaths resulting from unsafe abortions.Footnote ³³The continued restriction demonstrates that regardless of the constitutional guarantee of rights within the national Constitution and international conventions, abortion rights are a question for the state to determine. This shows that the regulatory framework has potential negative effects on women and girls’ rights.Footnote ³⁴

Infertility among Nigerian women has been on the rise in recent times, with millions resorting to different approaches including IVF and surrogacy.Footnote ³⁵The regulatory vacuum can create a problem of arbitrage and an open playing field for different regulators within the medical profession, considering that Nigeria operates a self-regulatory approach to the healthcare profession for determination. Nigeria’s National Population Policy (the Policy) explicitly prioritizes population control as a matter of state interest, with the government asserting a significant role in shaping reproductive decisions across the country. This prioritization, however, disproportionately impacts economically disadvantaged women who lack access to alternative means of conception. ARTs, such as IVF, are prohibitively expensive; a single IVF cycle costs between NGN 4.5 and 5 million; a sum that is unaffordable for most Nigerian women.Footnote ³⁶Additionally, there is the absence of national data on the prevalence of surrogacy arrangements, much like the case with abortion services, which remain illegal and undocumented.Footnote ³⁷This regulatory void underscores the limited scope of Nigeria’s reproductive health policies and their failure to address the real-life challenges faced by individuals in accessing safe and affordable reproductive options. A surrogacy process costs between NGN 10–15 million, depending on the status of the surrogate, jurisdiction and parties’ negotiation, excluding incidental costs.Footnote ³⁸Economically privileged women can afford the cost of fertility services, including travelling abroad to obtain services, even where it is illegal.Footnote ³⁹For poor women, fertility treatment is a luxury they cannot afford. They are open to systemic abuse, social ostracization and discrimination. The vacuum in the regulation demonstrates the extent of dynamics of power play within the Nigerian system. Moreover, the approach has ways of further deepening the gender bias and stereotypes against girls and women within the Nigerian system. Consequently, Nigeria’s reproductive governance to surrogacy can have different effects on different categories of women. This makes it a legal as well as social issue.

Determinants of Nigeria’s reproductive governance

Nigeria gained its independence from Britain on 1 October 1960 and became a federal republic on 1 October 1963.Footnote ⁴⁰There are three tiers of government under the 1999 Constitution, the federal, state and local governments. Nigeria is currently a federation consisting of 36 states and a federal capital territory in Abuja, with 774 local government areas. Nigeria is grouped into six geopolitical zones, namely: the North Central, North-East, North-West, South-East, South-South and South-West.Footnote ⁴¹Another important fact about Nigeria is that the country is a multi-ethnic, multi-religious and multi-lingual one. In fact, the country has about 374 ethnic groups with Yoruba, Ibo and Hausa as the dominant ethnic groups.Footnote ⁴²Recent research estimates Muslims at 50 per cent, Christians at 40 per cent and indigenous worshippers at 10 per cent.Footnote ⁴³Muslims live primarily in the North while the majority of Christians live in the South.

Nigerian population policy

The provisions of the Policy reveal the deeply political nature of reproductive regulation in Nigeria.Footnote ⁴⁴By attempting to regulate birth rates, the Policy implies that reproductive decisions are not solely within the personal autonomy of women, but are instead framed as matters of state interest, reflecting broader national priorities.Footnote ⁴⁵This is evident from the inception of Nigeria’s first National Population Policy in 1988, which aimed to improve the standard of living and curb the high population growth rate, a rate perceived as a threat to the nation’s welfare and socioeconomic development.Footnote ⁴⁶However, this policy has proven inadequate in addressing contemporary issues, particularly with respect to surrogacy and other forms of ART. The state’s religious and cultural context influences reproductive policies, often leading to a restrictive regulatory environment that fails to support individuals’ rights to make autonomous reproductive choices.

According to Obono, the National Population Policy originates from “deliberations of international conferences”.Footnote ⁴⁷Experts argue that this is rather alien to the culturally diverse and pro-natalist culture of the country.Footnote ⁴⁸The practice or policy encourages government support of an increased birth rate.Footnote ⁴⁹Most importantly, the policy is criticized for targeting women’s fertility behavioural changes that ignore male reproductive motivation. The policy ignores the voices of women, as very few women are represented in such an important reproductive decision-making initiative.Footnote ⁵⁰This reflects the poor reproductive governance of the country and the political nature of reproduction in Nigeria.

In January 2004, the policy was replaced with the National Policy on Population for Sustainable Development.Footnote ⁵¹This has a similar objective of “reducing fertility” with an additional goal of increasing the use of contraceptives in reducing maternal mortality.Footnote ⁵²It sets to reduce the national growth rate by 2 per cent and maternal mortality by 75 per cent.Footnote ⁵³The goals remain unachieved over a decade later. In 2019, the World Bank estimated Nigeria’s growth at 4.2 per cent, and by 2050 the population will reach 400 million from an estimated 236 million in 2024. This reflects the need to consider the relevance of culture and religion in the regulation process, for effective governance.

Having established that the governance of reproductive issues in Nigeria aligns closely with the majorities’ cultural and religious priorities, it is essential to explore what shapes these priorities in the face of advancing healthcare and reproductive technologies. In Nigeria, the absence of regulation and judicial decisions on certain reproductive matters is not due to mere oversights but is largely intentional.Footnote ⁵⁴This selective regulation reflects a deliberate strategy to consolidate political power by avoiding regulating religiously and culturally sensitive issues as surrogacy through focusing on policies deemed more immediately impactful for economic growth and governance stability. When reproductive laws are enacted, they are often weakly enforced and lack supportive policies, rendering them ineffective in practice.Footnote ⁵⁵For instance, the Nigerian Government has consistently avoided substantive regulation on abortion, despite the significant impact of restrictive laws on maternal mortality rates. This avoidance highlights a political calculus that deprioritizes reproductive health concerns, even when they directly affect women’s health and survival. The regional disparity in the rates of mothers’ deaths across social categories based on economic, geographic and religious orientation borders on faith.Footnote ⁵⁶The dearth of empirical data on surrogacy and its attendant inequalities in Nigeria is largely due to its slow development in the country and the perceived overbearing approach of the state towards regulating reproduction. The lack of policies on emerging healthcare issues also contributes to this unwholesome situation.

In Nigeria, reproductive governance is mostly based on the ideological underpinning and orientation of the religious and political elite and not for the protection of the women and girls who are primary subjects of the regulation.Footnote ⁵⁷In 2012, the Nigerian Assisted Reproduction Authority BillFootnote ⁵⁸was presented for legislation but rejected by the male dominated National Assembly, because it violates the cultural and religious (mostly northern) views surrounding ART.Footnote ⁵⁹Colonialism and its form of administration raises the northern Muslim consciousness to challenge the influence of southern Christian dominance in Nigeria, especially in relation to the erosion of northern (Islamic) cultural values and principles.Footnote ⁶⁰The consequent implication of this is the rejection of Western values which are perceived as Christian. On this basis, the political elite in the North capitalized on fears of domination by the southerners to generate a northern identity that guaranteed control of political power.Footnote ⁶¹In some cases, it presents a front for resistance to a specific national reform agenda they perceive as threatening this identity. Therefore, the application of rules affecting reproduction remains highly contingent on the character and role of national politics.Footnote ⁶²The cultural and religious beliefs of these categories of elites makes reproduction a testing ground for examining the possibility of developing norms in Nigeria. This is most especially where laws or regulations affect the intersection of culture and religion.Footnote ⁶³For instance, the implementation of the CRA has been seriously hampered in some northern states with the dilution of the core provisions of the statute to reflect religious and cultural concerns. Religious interpretations in these communities always prioritize traditional or Islamic principles over the CRA, thereby creating cultural resistance and gaps in the attempt to regulate. Examples of such modifications include the age of marriage,Footnote ⁶⁴which affects the core of the statute. Often, the right to religion and conscience under section 38(1) of the 1999 Constitution are grounds which sustain cultural domination.Footnote ⁶⁵In 2018, Nigeria enacted legislation criminalizing lesbian, gay, bisexual, transgender and queer (LGBTQ) rights. This is simply because it offends religious and cultural laws.Footnote ⁶⁶It cannot be said that this assertion is purely a northern idea, as the southern regions of the country also share the moral and religious justification for prohibiting issues like abortion, LGBTQ rights and surrogacy.Footnote ⁶⁷

Surrogacy is a process which seeks to ensure that women and girls who are unable to conceive (medically) have alternative means of having a child that is genetically related to them. One would argue that such service should align with the orientation that women get the required assistance, including through technology, to achieve such purpose.Footnote ⁶⁸The following section discusses how Nigeria’s legal, cultural and religious leanings affect reproductive governance decisions and how the process of norm development evolves.

Cultural conflicts as barriers to regulating surrogacy in Nigeria

Understanding the interaction between regulating surrogacy and the development of norms requires an analysis of deeply rooted culture with modern principles, rule of laws and political institutions, and their tendencies for contradiction in Nigeria. In most Nigerian communities, kinship, blood lineage and the role of women in reproduction are essential, and anything contrary to these can create tension. This is the main contention for a concept like surrogacy within most communities, whose members still regard the process as unnatural and a taboo and therefore difficult to accept, especially in the rural areas. There is a need for contextual specificity to understand the proper process and operation of these factors within the Nigerian system, and how they affect the lives of women within cultural communities. For example, under Sharia law, ie the Sunni school of thought, which is the cultural identity of majority of northern Muslims, the majority of ARTs are allowed, provided that the source of the sperm, ovum and uterus are a legally married couple in the course of their marriage.Footnote ⁶⁹Thus, no third-party intervention in reproduction is permitted. This makes surrogacy unlawful under the Sharia law. It frowns at the use of ART without any medical justification, ie IVF would be justified and permissible in Islam since it does not involve a third party or artificial means of obtaining sperm or ovum from other parties outside a conjugal relationship as in the case of surrogacy.Footnote ⁷⁰Couples are enjoined to accept inability to conceive after a technology fails to assist in the reproduction process. The prohibition on third party intervention is established across the Islamic world. Although it is situated within a secondary source of Qiyas Islamic jurisprudence, 90 per cent of the Muslim Ummah globally adheres to the dictates of several fatwas issued by scholars and organizations.Footnote ⁷¹It is submitted therefore that until cultural changes to the Islamic schools of thought are effected which can have a positive disposition on the norms of the northern region, regulation of surrogacy must capture the hegemony of the northern Muslims in Nigeria to be effectively regulated.

In the southern region, I consider the nature of the predominantly Christian region of Igbo and Yoruba where there exists a semblance of surrogacy in woman-to-woman Footnote ⁷²and maid marriage. The concepts are aimed at inheritance and continuation of a lineage. The perception of surrogacy in the region is deeply intertwined with its socio-cultural and religious values. Both the Yoruba and Igbo people have historically upheld strong family structures where childbearing is considered essential to societal marital fulfilment and status. Christianity, the major religion in the South, plays a significant role in shaping attitudes toward ART, including surrogacy, and further reinforces conservative attitudes toward it. The Bible does not explicitly address modern reproductive technologies, but its teachings on procreation and family structure influence Christian perspectives.Footnote ⁷³These influences create a complex landscape where surrogacy remains largely stigmatized, although historical and precedent studiesFootnote ⁷⁴suggest varying degrees of informal acceptance. It is prohibited, especially in cases involving embryo selection and disposal. According to a theologian,Footnote ⁷⁵technology has positioned medical practitioners as arbiters of life and death, a role that many Christians find morally troubling. He argues that the introduction of third parties into a Christian marriage violates the exclusivity of the union between the parties.Footnote ⁷⁶Some denominations equate surrogacy with adultery, particularly in cases where the surrogate uses her own egg, thereby establishing a genetic connection with the child.Footnote ⁷⁷The moral dilemma extends to cases where donor sperm or eggs are used, as this introduces genetic material from an outsider. This further complicates parental identity.

On the cultural side, both Yoruba and Igbo cultures emphasize the family not just as a unit but also as a strong reflection of the acceptable process of begetting offspring.Footnote ⁷⁸Surrogacy is then considered demeaning. This idea underscores the cultural significance of children in providing a social structure which supports dignified familial security. Although alternative means of childbearing exist historically,Footnote ⁷⁹they are not in the form of modern surrogacy. They are basically for social and cultural reasons, as against medical intricacies involved in surrogacy. Notwithstanding the existence of these forms, voluntary surrogacy or “renting a womb” is generally considered a cultural anomaly since lineage and inheritance issues may arise.Footnote ⁸⁰In both societies, surrogacy as a commercial transaction is particularly contentious. The idea of commodifying childbirth is seen as a disruption of the sanctity of reproduction, akin to selling one’s body. Women who serve as surrogates, particularly in commercial arrangements, may be perceived as engaging in a practice that diminishes the dignity of motherhood.Footnote ⁸¹The comparison of commercial surrogacy to prostitution, and the commodification of women’s reproductive capacities as argued by scholars like Dworkin,Footnote ⁸²resonates with cultural apprehensions about women’s bodies being used for financial gains.Footnote ⁸³In cultures where lineage and inheritance are strictly defined, the question of the surrogate child’s rightful place within the family hierarchy becomes a contentious issue. Predominant southern customs place significant emphasis on patrilineal descent, and the use of third-party reproductive assistance can blur these lines, which could lead to disputes over legitimacy and succession.Footnote ⁸⁴Despite these concerns, there is a growing need for a more accommodating approach to surrogacy in Nigeria. As infertility treatments gain more recognition, it is imperative that socio-cultural and religious perspectives evolve to become more receptive to medical innovations, especially where surrogacy is the only viable option for couples seeking biological children. A comprehensive framework that captures the cultural and religious idiosyncrasies can help create a more balanced regulation for surrogacy in Nigeria.

Lessons from abroad?

Health norm development: a struggle for significance

Establishing norm creation for surrogacy in Nigeria requires a strategic and comprehensive approach. I argue that Eager’s theory of norm creation provides a suitable model.Footnote ¹⁰⁸This research emphasizes that normative changes are influenced by the priorities and interests of the international community and nation states, and non-state actors seeking to transform existing norms based on their social realities.Footnote ¹⁰⁹To initiate a transformation of a policy, various stakeholders must be engaged. These include the affected women’s groups, international organizations, NGOs and other relevant entities. This reflects an inclusive and intersectional approach to regulation. Mobilization and negotiation efforts should be carried out both locally and internationally to institutionalize a norm on women’s reproductive health.Footnote ¹¹⁰

Having established the influence of religion and culture in the regulation of reproduction in Nigeria, the Ulamas in the male Muslim dominated North and Christian stakeholders have an indeterminate nature and the existence of various Islamic schools of thoughts on Sharia rulings on ART makes it challenging to categorize them as a valuable entity in this norm formation and as custodians of cultural values. The integration of culture into the process of norm creation for health-related issues in Nigeria, particularly in the realm of surrogacy, presents complexities that demand careful consideration. Contrary to traditional norm formation, cultural and religious factors drive the formation and acceptance of health norms in Nigeria. In the case of surrogacy, where deeply held beliefs intersect with demographic concerns in a federal structure, the challenges are manifold. The dominant influence of the religious elites in shaping the normative discourse surrounding health practices introduces a unique layer of consideration. Religious and cultural elites can wield considerable influence in determining the feasibility and acceptance of surrogacy as a health norm. According to Falola, the political intrigues of religious and ethnic issues, particularly at the federal level, is greater than ever before.Footnote ¹¹¹The fight for political control in Nigeria now entails the manipulation of religious principles and symbols.Footnote ¹¹²This can affect the evolution of surrogacy, as non-regulation can be seen as synonymous to a rejection of efforts to use the West or its human rights standards and values as point of reference when regulating reproduction in Nigeria. Therefore, any attempt to create a norm for surrogacy within Nigeria’s diverse and intricate landscape necessitates a delicate negotiation of these forces.

Eager’s theory of norm creation emphasizes the role of socialization and collective expectation. It encounters distinctive challenge when applied within the context of Nigeria’s cultural and religious hegemony. The five-stage process for normative change in the context of population control provides a framework for establishing norm creation for surrogacy in Nigeria. It involves challenging the existing norm, ie dominant religious and cultural interpretations and rulings. The process begins with actors who are dissatisfied with the current norm and are willing to challenge the status quo. These actors play a crucial role in questioning the shortcomings of the existing norms such as the failed Policy, the rate of infertility and attendant exploitation, and the restrictive ruling on ART by some religious groups. The emergence of criminal cartels that exploit poor girls and women for reproduction in exchange for accommodation and financial benefit, in violation of their rights, has brought to the fore a need for a reconsideration of the government’s position on surrogacy in Nigeria, as so-called baby factories are constantly springing up across all regions of the country. This requires that the government understand the root cause of these criminal acts, a critical step towards developing a norm on such reproductive malaise. Just like abortion, the practice of surrogacy by medical practitioners in the form of the unconscionable “baby factory” model is rampant in Nigeria, and this is also the case in interstate and cross border surrogacy by Nigerian women and girls, despite its criminalization.Footnote ¹¹³

Secondly, a shallow policy exists on ART, but it fails to meet the standard for a reproductive policy and practice considering the advancement in technology and the magnitude of related issues discussed in the preceding paragraph. Both state and non-state actors with transformative capacity must advocate for the introduction of such policies. This involves actively engaging with policymakers, legislators and relevant government agencies to influence policy and practice regarding surrogacy regulation. The right policy requires accelerating the shift from the prevailing norm to framing an alternative perspective on surrogacy regulation. Most importantly, healthcare professional regulatory bodies have a crucial role in raising the awareness needed for a reform of the norm.

Additionally, creating a new health norm requires the support of local social movements and NGOs. These entities have the capacity to raise awareness, provide resources and advocate for the establishment of comprehensive and rights-based surrogacy regulations.Footnote ¹¹⁴To achieve a norm in line with the cultural and religious capacities of these organizations or movements requires what Abdulai Naim tagged “internal agreement”, in line with local settings especially in the context of rights.Footnote ¹¹⁵The stages outlined above are not fixed and can be influenced by cultural experiences, which may result in a longer timeframe for norm development. Flexibility, persistence and a deep understanding of the geopolitics and cultural landscape are essential for effectively implementing the desired changes in surrogacy regulation in Nigeria.

Rethinking Nigeria’s approach to ART regulation – a model

Several attempts have been made to regulate reproductive technologies in Nigeria. Without a legal framework that defines permissible activities relating to surrogacy, many key issues like discrimination, exclusion, limited stakeholders’ engagements and lack of compliance will be left unattended to under state and national laws. The relevance of the National Health Act 2014 (NHA),Footnote ¹¹⁶which is the principal act regulating health in Nigeria, cannot be ignored. Section 10(1) clearly prohibits ART. Any medical procedure and process in that mode constitutes a criminal act, a felony liable to five years imprisonment with an option of a fine.Footnote ¹¹⁷The National Framework for the Regulation and Supervision of Reproductive Technology BillFootnote ¹¹⁸amends the NHA through the National Health (Amendment) Bill.Footnote ¹¹⁹It empowers the Ministry of Health to develop health policies. This is a knee jerk approach to regulation. It is contended that effectively regulating surrogacy cannot be achieved through policies but by concrete legislation. However, there are existing laws seeking to address the loopholes in the regulation of ART and surrogacy, including the allocation of rights and responsibilities of surrogate parties, but these bills focus more on other forms of ART with restrictive rules on surrogacy.

Recognizing women’s reproductive rights is crucial in shifting from a focus on population control to a reproductive health rights perspective. The UN international human rights regime advocates for this shift.Footnote ¹²⁰Historically, national population policies, largely influenced by developed nations, have overlooked women’s sexual and reproductive rights and autonomy. This attitude disregards the consequential negative effects on women. Several developing countries have challenged the argument put forth by developed nations that rapid population growth causes underdevelopment.Footnote ¹²¹The excessive emphasis on population control has resulted in the neglect of artificial reproduction, which highlights the need to address infertility and increase population rather than reduce it. The existing norm, therefore, has detrimental effects on women’s health and reproductive rights.Footnote ¹²²

The feminist movement and organizations have emerged as unified actors, rallying likeminded global human rights activists to challenge population control measures. Many NGOs focusing on reproductive issues have joined forces with the feminist movement, framing abortion and coercive family planning services as health and human rights issues.Footnote ¹²³Reproductive rights and health have been promoted as the new norm to guide population policy, leveraging UN-sponsored conferences as platforms for advancing this normative shift.Footnote ¹²⁴This shift was officially declared at the International Conference on Population and Development in Cairo in 1994, marking a new era in global population policy. This fresh norm prioritizes the removal of coercion and oppressive regimes of population control imposed by states and international actors.Footnote ¹²⁵

My position is that considering the issues discussed above, surrogacy should not only be permitted but regulated to limit its operation in the interest of the child, intending parents, especially women, and the harms resulting from the lack of regulation, a vacuum that has led to the baby factory problem in Nigeria. This approach can also remove the operation and surrogacy contracts from the uncertain and grey areas they presently occupy. The Nigerian political elites, both northern and southern, must realize that the status quo is oppressive and violates women’s and girls’ autonomy, right to dignity, reproductive health rights and non-discrimination, as it expands the existing social inequality where only the rich can afford ART when infertility sets in.Footnote ¹²⁶Social actors must engage with Nigeria’s political circumstances to reflect its appropriate forms of regulation of ART through reform of constitutional provisions of laws and policies.

There is a need for non-state actors such as international organizations that are important stakeholders in driving change, especially for women’s rights,Footnote ¹²⁷to mobilize for the transformation of the norm, based on sexual and reproductive rights recognized under international instruments that Nigeria is a signatory to. The International Covenant on Economic, Social and Cultural Rights,Footnote ¹²⁸article 12 of the African Charter on Human and Peoples’ RightsFootnote ¹²⁹and article 14 of the Maputo Protocol,Footnote ¹³⁰which Nigeria has domesticated, provide for the need to ensure equality in access to sexual and reproductive rights of women. The provisions of the CRA which domesticated the Convention on the Rights of the ChildFootnote ¹³¹and the ACRWCFootnote ¹³²must also be taken into consideration on the ground of the best interest of the child principle, and due to the far-reaching obligations emanating from the conventions.

The norm in the form of substantive legislation must be well integrated, comprehensive and accommodating of the different experiences of different groups. In addition, it must follow well established rights-based approaches from different jurisdictions that have sought to regulate these services. One major approach to surrogacy which can be adopted by Nigeria is cautious restriction, with clear guidelines on implementation and a ban on commercialization of reproduction.Footnote ¹³³This position aligns with the cultural and religious practices in the regions of the country especially the South.

Rules seeking to legislate such services must address the age-long constitutional private and public divide, and seek an internal balance by addressing the Western rights narrative, including the explicitly discriminatory system. The contradictions between public formal equality and private discrimination are a compelling demonstration of the reluctance of the state to uphold gender equality when it is presumed to conflict with group interests. The public–private dichotomy underpins the religious–secular binary, where the state is committed to a policy of secularism in the public sphere but does not interfere with religious law in the private sphere, even when state laws conflict with constitutional guarantees.Footnote ¹³⁴The rules must also be comprehensive in their framing and capture the essence of such technologies, focusing on the most significant actors in the arrangement and need to resolve infertility in women. It must also address family law (conflict of laws), property (inheritance), trust and tortious issues that may arise from an artificial arrangement in a reproduction scheme.