The term “surrogacy” is derived from the Latin word “subrogare”, which means to substitute. Encyclopaedia Britannica defines surrogacy as an arrangement in which a woman bears a child for a couple unable to produce children in the usual way.[1] Surrogacy is indicated when pregnancy is medically impossible,[2] too risky or when an individual or couple, for whatever reason, decide to have a child. The practice has ancient origins. Available evidence indicates that its earliest recorded occurrence took place thousands of years ago, in Israel. The book of Genesis documents that because she was infertile, Sarah contracted with her handmaid to bear a child for her husband, Abraham.[3] But the Jews were not the only people that practised surrogacy. The practice has been embraced at one point or another by other cultures as a response to childlessness challenges. Infertile women in the ancient kingdom of Babylon used surrogacy to produce a child in order to avoid a divorce.[4] The practice is also obtainable in Africa, amongst the Igbo people of South-eastern Nigeria. In that culture, a married woman, who is barren, can elect to “marry” a fertile woman to produce children for her husband.
Modern-day surrogacy arises as a result of a contractual agreement in which a woman (surrogate mother) agrees, prior to conception, to become pregnant and gestate a baby on the understanding that upon birth, the baby, together with all parental rights and obligations, will be surrendered, relinquished or handed over to the intended or commissioning parents. This paper consists of five sections. Following this introductory section, Part II examines different classifications of surrogacy, namely, traditional and gestational as well as altruistic and commercial. In Part III, the paper tackles two key dimensions or aspects of surrogacy, namely, legal and ethical. The importance of this section lies in providing a blueprint of important considerations that would guide countries interested in instituting a regulatory regime to govern the practice within their jurisdictions. Part IV examines the legal status of surrogacy in Nigeria. The conclusion – Part V – is that surrogacy-evolving jurisdictions should juxtapose the different approaches discussed in this paper against their core values in crafting their respective regulatory regimes.
Types of Surrogacy
Surrogacy can be classified according to different types, depending on the characteristic or genetic origin of the egg, or whether the contract involved the exchange of money. Category one comprises traditional and gestational surrogacy while the second classification is made up of altruistic and commercial surrogacy.
Traditional Surrogacy
In traditional surrogacy (also known as partial, natural, or straight surrogacy), the eggs of the surrogate and the sperm of the intended/commissioning father or a donor are used for fertilization. Because the eggs of the surrogate are used, she is the biological mother of the resulting offspring. The surrogate may be inseminated naturally or artificially. Using the sperm of the intended father in the insemination will result in a child that is genetically related to him and the surrogate.[5] When the sperm of a donor is used, the result will be a child that is not genetically related to the intended parents.
Insemination usually takes place in doctors’ offices or fertility clinics, but it can also be performed by the parties without third party (physician) intervention. Where donor sperm is used, some jurisdictions require the intended parent to complete a formal adoption process in order to acquire parental rights to the resulting child.
Gestational Surrogacy
A key distinction between gestational surrogacy (also known as host or full surrogacy)[6] and the traditional type is the absence of biological or genetic connection between the surrogate and the child in the former.[7] This is because unlike in traditional surrogacy, which involves usage of the surrogate’s egg, gestational surrogacy depends on egg donation from a third party.[8] Another distinction is that the gestational type requires a different medical procedure to achieve conception. It relies on in vitro fertilization (IVF) technology – a procedure which became available in 1978.[9] IVF involves using the intended mother’s (or donor’s) egg and sperm from the intended father (or donor) to create an embryo, which is subsequently transferred to the surrogate. The use of IVF is not limited to gestational surrogacy and can also be used in traditional surrogacy, but typically, traditional surrogacy is achieved with artificial insemination, using intrauterine insemination (IUI).[10] IUI is a far simpler method in that the surrogate is not subjected to as many fertility treatments prior to the procedure as in IVF.
Gestational surrogacy can take many forms, all of which will produce a child that is genetically unrelated to the surrogate:[11]
- The embryo is created using the intended father’s sperm and the intended mother’s eggs
- The embryo is created using the intended father’s sperm and a donor egg
- The embryo is created using the intended mother’s egg and donor sperm
- A donor embryo is transferred to a surrogate, such as where an excess embryo from others undergoing IVF is donated to the surrogate and intending father, in which case, the resulting child will have no genetic relationship to the intended parent(s).[12]
Altruistic Surrogacy
Altruistic surrogacy refers to those arrangements that do not involve monetary compensation, although the surrogate mother is reimbursed for her medical and other pregnancy-related expenses, including insurance coverage. The surrogate in an altruistic arrangement is typically a close relative or friend to the commissioning parents.[13]
Commercial Surrogacy
Commercial surrogacy requires payment of an agreed compensation to the surrogate. The law governing these arrangements varies widely between jurisdictions. While commercial surrogacy is banned in some countries; other countries allow both commercial and altruistic types or only the latter. Remarkably, there is no surrogacy friendly jurisdiction that does not permit altruistic surrogacy. Commercial surrogacy often involves third-party agencies whose business it is to recruit a surrogate and facilitate a surrogacy contract with her. These agencies screen surrogates’ medical and psychological fitness to ensure the best chance of healthy pregnancy and delivery.[14] They facilitate the delivery of information and services between clinics and surrogacy attorneys to ensure compliance with the necessary requirements and also provide counselling and support services throughout the process.[15]
There are several concerns associated with surrogacy – legal, ethical, psychological and religious.[16] This paper is on the legal and ethical considerations of maternal surrogacy.
Legal Considerations
Legal concerns regarding surrogacy arise in seven principal contexts, namely, (i) legality or otherwise of surrogacy – that is whether prohibited or permissible?; (ii) altruistic versus commercial surrogacy; (iii) traditional versus gestational surrogacy; (iv) non-traditional family and surrogacy; (v) parentage; (vi) transfer of guardianship; and (vii) citizenship question.
Legality of Surrogacy
The legality (or otherwise) of surrogacy varies from country to country, shaped by history, religion, culture and social values.[17] In other words, there is no uniformity or consistency amongst global approaches, and even within countries, such as the United States, varying legal regimes apply across different states.[18] In some countries, there is an outright ban on all forms of surrogacy, including international surrogacy, while in others, only commercial surrogacy is prohibited, and altruistic type allowed. However, in most countries, the practice is completely unregulated.[19]
Altruistic versus Commercial Surrogacy
While some jurisdictions permit only altruistic surrogacy, others also allow commercial surrogacy. No jurisdiction permits commercial surrogacy and at the same time, prohibits altruistic ones. Jurisdictions which limit surrogacy to the altruistic type do so on the basis that “surrogacy [ought to be] a gift from one woman to another”[20] – that is, devoid of financial interest. In contradistinction to seeing the practice exclusively in altruistic terms, jurisdictions which also permit commercial surrogacy to view it “as an expression of a woman’s autonomy to engage in surrogacy of their own free will.”[21]
Traditional versus Gestational Surrogacy
There are variations in legal regimes governing permissibility of traditional and gestational surrogacy. Whereas virtually every surrogacy friendly jurisdiction allows gestational surrogacy, just four of them permit the traditional type, namely, Albania, Australia (federal government, not regions), Canada and South Africa.[22]
Non-Traditional Family and Surrogacy
The question of whether surrogacy is open to a non-traditional “family” is one on which, again, there is no uniform legal response. Of the 24 jurisdictions which explicitly recognise surrogacy, only seven accord surrogacy rights to non-traditional families – single parents and same-sex couples (Albania, Armenia, Australia (federal government), Canada, Denmark, South Africa and the United Kingdom).[23] The vast majority of the jurisdictions (14) explicitly forbid single parents and same-sex couples from involvement in surrogacy arrangements.[24]
Parentage
Is the surrogate mother or the commissioning couple the parent of the child? This is one of the most vexed legal questions regarding surrogacy and in respect to which there is also no consensus. Nonetheless, the vast majority of the jurisdictions which expressly permit surrogacy arrangement (17 out of 24)[25] recognize the intended parents as the legal guardian or parent of the child, with only seven vesting parental rights on the surrogate mother.[26]
Transfer of Guardianship
What is the legal process that operates to confer guardianship on commissioning parents? Is it by pre-birth orders or post-birth adoption?[27] Practices differ across countries. For instance, in Belgium, Ireland and Netherlands, where only altruistic surrogacy is permissible, the legal systems require a transfer of guardianship through adoption to the commissioning parents. The same rule applies in the United Kingdom except that guardianship transfer can be effected by either adoption or court order. Still, in others, such as Armenia and Ukraine, the commissioning parents are automatically recognised as the legal guardian of the child
The Citizenship Question
The traditional means of determining citizenship at birth through the legal principle of jus soli (“right of the soil”) – that is, being born on the soil of the country in question – orjus sanguinis (“right of blood”)—that is, being born to parents who are citizens of that country, is being challenged by surrogacy. This is because the question as to who the surrogate child’s mother is is not settled but varies from place to place. Given that some countries recognise the surrogate as the mother while others bequeath parenthood to the commissioning parent, there could be a clash of laws, in which event, the child can become stateless, with neither country being in a legal position to recognize him as a citizen.[28]
Ethical Considerations
Surrogacy raises numerous ethical concerns, ranging from questions pertaining to the rights and welfare of the surrogate and child to issues of social justice. These concerns can be classified as those emanating from autonomy, coercion and undue influence, exploitation, confidentiality protection and vulnerability of children.
Autonomy
The principle of individual autonomy (or respect thereof) confers freedom of action upon individuals, unconstrained or undisturbed by any other individual or entity. In so far as the individual acts intentionally, rationally, competently, and does not interfere with the right of others, his choice of action or decision must be respected.[29] This ethical principle not only protects individual actions and decisional capacity, but it also imposes a correlative duty on others to respect the exercise of the right.[30] This principle has been explained in terms that the individual is sovereign “over himself, over his own body and mind”[31] in the sense that the individual’s action was freely undertaken and uncoerced. Therefore, the argument goes, so long as the surrogate is an adult whose competence to contract is not compromised in any discernible way, no ethical principle is implicated once she contracts on terms which she judges to be mutually beneficial.
The typical claim is that the woman “consented” to the contract, and since she is an adult and of sound mind, no ethical principle is breached. But this argument, superficial at best, is scarcely sustainable. The relevant question should be whether there was true consent – the kind that was autonomously driven or whether the surrogate’s autonomy was compromised by coercion, violence or extreme poverty. The point is that despite seemingly robust claims to the contrary, the reality, argues women’s rights campaigner Kathleen Sloan, is that “unequal relationships between the buyers (intended parents) and the women who rent their uteri, favour the needs and desires of the buyers” and unless appropriate regulatory framework is instituted, “these unequal transactions” will ultimately “result in ‘uninformed’ consent, low payments, coercion, poor health care, and severe risks to their short and long-term health.”
Coercion and Undue Influence
Coercion is related to compromised autonomy in the sense that the surrogate mother in both cases is being coerced to act in a manner that is not, at least in the long run, representative of her best interest. But the coercion deriving from undue influence, unlike that considered in autonomy, is not always subtle. Constrained agency as a result of bewildering and irresistibly violent economic and sociocultural factors, often manifested in the form of overbearing persuasion or compulsion from husbands[32] or other relatives, which forces jettisoning of self-respect and dignity on the part of the surrogate, is the appropriate point of departure.[33] Cultural expectations may also operate as a coercive force upon the woman. The respect that is accorded to marital institution and condemnation that often trails divorce, even when the woman was not blameworthy, may operate to force her to become a party to a surrogacy arrangement – that is, to do whatsoever is necessary to avoid bringing shame upon her and her family.
Exploitation
One of the most challenging aspects of surrogacy is the question, whether the surrogate is being exploited, whether the wombs of poor women in third world countries are being commodified to meet the reproductive yearnings of affluent women in industrialised nations.[34] Opponents of this view argue that the women are being provided with an opportunity to earn money that could be used to address critical needs – needs that could have gone unaddressed in the absence of the surrogacy agreement. A counter-argument is that a larger share of the payment goes to the middlemen and commercial agencies, with only little leftover trickling down to the surrogate. Moreover, it has been argued that indeed “there is a fundamental right for citizens to be free to make contracts between themselves,” yet, “this freedom must be limited (by the government). . . to avoid the exploitation of poorer, weaker parties”[35] such as those committed to trading their wombs for cash rewards.
Confidentiality
It has been asserted that the privacy that normally would characterise dealings with a physician is compromised by the involvement of a third party in a surrogacy arrangement.[36] Surrogacy arrangement typically involves the disclosure of the medical history of the surrogate to the physician during consultation and evaluation – information which, of necessity, must be subsequently disclosed to the commissioning couple.[37] Although there could be certain aspects of the medical history and condition of the surrogate mother which she would ordinarily have wished to remain confidential, disclosure is nonetheless made on account of the dire need that necessitated the agreement to act as a surrogate in the first place. Disclosure is made regardless of the reservations of the surrogate and therein lies the ethical dilemma.
Vulnerability of Children: Concern regarding the vulnerability of surrogate children centres on identity and parenthood, abandonment and abuse, and child trafficking. Surrogacy transactions commodify not only women but also resulting children as, in some cases, they are treated as mere pawns in a chain of events designed for the benefit of the commissioning parents.[38] Contrary to the best interest mantra,[39] the interest of the child is not considered in the procedure as the transfer of parental rights and duties from the surrogate to the commissioning parents effectively shuts out the possibility of any claim to its “gestational carrier” or biological parents, depending on whether the egg and/or sperm are products of the intended parents.[40] The child is also denied the right to information about any siblings he may have in the event of the latter situation.[41]
Legal status of Surrogacy in Nigeria
In Nigeria, there is no legal or policy regime regulating surrogacy. In other words, there is no law specifying whether surrogacy is legal or otherwise. Furthermore, there is no record of a pending bill before the federal legislature on the subject. This lacuna has been described as having “created a void, which is being and can be exploited further by illegal commercial operators with news of baby factories, baby sale, baby swap rife in the country.”[42] Nonetheless, as fertility experts Abayomi Ajayi and Victor Ajayi reported in 2016, surrogacy is not only practised in the country[43] – where infertility rate is one out of every four couples,[44] the practice is believed to be legally permissible.[45] Attorneys involved in preparing surrogacy agreements are guided by the recommendations of the Human Fertilization and Embryology Authority[46] and the Surrogacy Arrangements Act of the United Kingdom,[47] the reason being that as a former British colony, the domestic laws in Nigeria are based on the British legal system.[48]
There are several registered fertility clinics, and they will not engage in surrogacy arrangement unless the rights and responsibilities of the surrogate as well as the intended parents are set out in writing.[49] Prior to the commencement of treatment, the surrogacy contract is signed by all the parties and notarised by a notary public. Although it has been asserted that compliance with this requirement renders the contract enforceable in Nigerian courts on the basis that the contractual terms are consistent with the rules of natural justice, equity and good conscience,[50] there is no reported court decision in the country that can be relied upon as a legal precedent or authority.[51]
Both altruistic and commercial surrogacy is practised,[52] although most surrogates are motivated by commercial interest. Only a few do it to assist relatives. Nigeria does not have registered surrogacy agencies and, therefore, intending parents typically make necessary arrangements for their own surrogates. Being that surrogacy is still evolving in the country and largely unregulated, it is vital that the contract spells out the rights and responsibilities of the parties. Importantly, the surrogate must be protected from exploitation by middlemen and fraudulent agencies, a need that is heightened by the peculiar circumstances of potential surrogates in the country – impoverished, uneducated and vulnerable.[53] The contract must contain clauses prohibiting abandonment of the surrogate in the event of unfavourable pregnancy outcome. It must also mandate the commissioning couple to accept the child regardless of unforeseen circumstances such as birth defects or any other form of abnormality. Where the surrogate wishes to remain anonymous or the commissioning couple does not want to meet with the surrogate, their wishes must be recognised and protected.[54]
Conclusion
This warning – of the “dangers of adopting a one-size-fits-all approach”[55] to addressing national challenges – in a 2009 Medicine and Law Journal publication has a strong bearing on the goal of this discourse. Although the focus of the publication was on social health insurance, the relevance of the admonition to the subject under discussion is incontrovertible.
The purpose of the warning was to caution “against the impetuous inter-country transfer of ideas. For even as between countries that share striking (socioeconomic) similarities, there could be idiosyncratic factors impeding the workability of certain ideas in country B notwithstanding their success in country A.”[56] This cautionary note is one that should be internalised by policymakers interested in institutionalising surrogacy governance regimes in their respective jurisdictions. Recognising that the vast majority of countries lack regulatory frameworks on surrogacy, this paper set out to discover and contextualise the global situation on the subject, how various jurisdictions have responded to the challenges presented by contemporary forms of becoming a parent based on their values and circumstances, the idea being to show by and large that countries aspiring to roll out surrogacy governance regimes must do so in tandem with the tradition, culture and morality of their people.
References
