The Imperative Of A Legal Framework For The Regulation Of Surrogacy In Nigeria

Posted on by Alex Obi

By Zhihwi Dauda Esq And Abdullahi Abbas Muhammad

INTRODUCTION:

Surrogacy is already happening in Nigeria. It is not a futuristic prospect imported wholesale from Western culture; it is a living social practice woven into the fabric of Nigerian family life. Fertility clinics in Lagos, Abuja, Port Harcourt, and other major cities routinely carry out in vitro fertilisation (IVF) procedures that culminate in gestational surrogacy arrangements.[1] Nigerian celebrities such as actress Iniobong Edo and Nollywood star Abiola Adebayo have publicly disclosed that they welcomed children through surrogacy, these recent declarations have reduced the stigma and demonstrating that surrogacy is not confined to any class or region.[2]

The high burden of infertility in Nigeria drives the demand. Infertility affects approximately 31.1 percent of Nigerian couples — one of the highest rates on the African continent.[3] With roughly one-third of sexually active couples unable to conceive within twelve months, and with adoption carrying a heavy social stigma, surrogacy has emerged as a preferred, if legally unrecognized, solution.[4] Risky alternatives — notably the ‘baby factory’ trade — flourish precisely because legitimate surrogacy lacks a legal home.[5]

The central problem is not that surrogacy exists in Nigeria; it is that it exists without rules. There is no statute that defines what a surrogacy contract is, who may be a surrogate, what she may be paid, or what rights she retains during and after pregnancy. There is no law that determines the legal parentage of a child born through surrogacy, nor any mechanism by which a court may prospectively declare the intended parents as the child’s legal parents before birth. In the event of a breach of a surrogacy agreement — a surrogate who refuses to give up the child, intended parents who refuse to accept a child born with a disability, a broker who absconds with money, or a surrogate who dies during pregnancy — the parties have nowhere to turn. No law speaks to their situation. No tribunal has been constituted to hear their grievances. No precedent guides a Nigerian court.

When a surrogacy agreement breaks down, the parties are forced to litigate, if at all, under general contract law principles.[6] A Nigerian court faced with such a dispute would likely approach it through the lens of the common law of contract, but surrogacy contracts are not ordinary commercial contracts. Their subject matter — a human life — renders them uniquely sensitive to public policy considerations. Courts in jurisdictions without surrogacy legislation have repeatedly declined to enforce such agreements, leaving intended parents without a child and surrogates without redress.[7]

The child, meanwhile, may be left in legal limbo, without a formally recognised parent on whose birth certificate the child’s identity can be anchored. The justification for legislation is therefore both pragmatic and rights-based. Pragmatically, law follows social practice: when a practice is widespread, refuses to disappear, and generates recurring disputes, the state has a duty to regulate it. From a rights perspective, the absence of a framework exposes surrogates — overwhelmingly women of lesser economic means — to exploitation, coercion, and medical risk without any safeguard. It also denies intended parents any certainty and places the resulting child in a precarious legal position regarding nationality, inheritance, and identity. International human rights instruments ratified by Nigeria, including the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Maputo Protocol, all impose positive obligations on the Nigerian state that cannot be discharged without legislation. This article seek to showcase the imperative of a legal framework for the regulation of surrogacy in Nigeria, bring out the comparative study of what is obtainable in other jurisdiction, identifying the challenges and suggested solutions.

  • Conceptual Clarification, Procedure, Parties, and Practice in Nigeria
    • Conceptual Clarification: The word ‘surrogacy’ derives from the Latin word sub rogare, meaning to appoint as a substitute.[8] In its modern sense, surrogacy is an arrangement — typically supported by a legal agreement — whereby a woman agrees to carry and deliver a child for another person or couple, who then assume the role of parent or parents after the child’s birth. There are two principal categories. Traditional (genetic) surrogacy involves the surrogate providing her own egg, which is fertilised with the sperm of the intended father or a donor through artificial insemination. The surrogate is therefore genetically related to the child. Gestational surrogacy, which is the more common contemporary form, involves the implantation into the surrogate’s uterus of an embryo created from the eggs and sperm of the commissioning parents or donors. The surrogate has no genetic connection to the child she carries Surrogacy may also be classified as altruistic (where the surrogate receives no payment beyond reimbursement of expenses) or commercial (where the surrogate receives a fee for her services). The distinction carries significant legal, ethical, and religious implications and has been the principal fault line in legislative debates across jurisdictions.
    • The Surrogacy Procedure: The process of gestational surrogacy — by far the most prevalent form in Nigerian fertility clinics proceeds through several distinct stages. First, the intended mother or an egg donor undergoes ovarian stimulation to produce multiple eggs, which are retrieved through a minor surgical procedure. The eggs are then fertilised in a laboratory with sperm from the intended father or a donor, in a process known as in vitro fertilisation (IVF). The resulting embryos are monitored for three to five days and assessed for quality. One or two viable embryos are then transferred into the uterus of the surrogate, who has been pharmacologically prepared to receive them. If implantation is successful, the surrogate is pregnant and carries the child to term. After delivery, the child is handed to the commissioning parents pursuant to the terms of their agreement.
    • The Parties: The key parties in a surrogacy arrangement are: (a) the commissioning or intended parents — the couple or individual who desires the child and for whom the surrogate carries the pregnancy; (b) the surrogate mother — the woman who carries the child; (c) the gamete donors, where the intended parents do not provide their own eggs or sperm; (d) the fertility clinic and its medical personnel; and (e) in many cases, a surrogacy agency or broker that facilitates the matching of intended parents with surrogates and manages the administrative aspects of the arrangement. Each of these parties has distinct rights, obligations, and vulnerabilities that a legislative framework must address.
  • Institutions and Clinics Practicing in Nigeria: In the absence of federal legislation, IVF and surrogacy services in Nigeria are provided by a growing number of private fertility clinics. Prominent among them are the Bridge Clinic (Lagos), Nordica Fertility Centre (Lagos and Abuja), NISA Premier Hospital (Abuja), and Memorial Medical Centre (Lagos), as well as many smaller clinics in the South-South and South-East geopolitical zones.[9] The Association of Fertility and Reproductive Health (AFRH) of Nigeria serves as the principal professional body, issuing ethical guidelines and clinical standards that its member clinics are expected to follow. In practice, however, compliance is voluntary; there is no statutory mechanism to compel adherence or sanction departures. The Lagos State Government took a pioneering step in 2019 by issuing the Lagos State Guidelines on Assisted Reproductive Technology, which address issues of registration, accreditation, personnel standards, maximum number of embryo transfers, cryopreservation, cross-border treatment, and surrogacy.[10] While commendable, these guidelines have no force of law and apply only within Lagos State. They represent a best-practices document rather than a binding legal instrument and have not been replicated by any other state
  • Institutional and Legal Frameworks in Comparative Jurisdictions
    • South Africa South Africa presents the most instructive model for Nigeria. Chapter 19 of the Children’s Act 38 of 2005 provides a comprehensive legislative framework for surrogacy in the country.[11] Under the Act, a surrogacy agreement must be in writing, signed by all parties, and confirmed by the High Court before any artificial fertilisation may take place. The court confirmation process serves as a safeguard: it verifies that the surrogate is legally competent, properly counselled, and has given free and informed consent, and that the commissioning parents satisfy the statutory requirements. Only gestational surrogacy is permitted; traditional surrogacy, in which the surrogate’s own egg is used, is prohibited. Commercial surrogacy is expressly forbidden: the surrogate may only be reimbursed for direct expenses related to the pregnancy, including medical costs, loss of earnings, and insurance. A child born pursuant to a confirmed surrogacy agreement acquires the legal status of the child of the commissioning parents from the moment of birth. The surrogate has the right to terminate the agreement within sixty days of giving birth, but such termination does not give her custodial rights; the court resolves the matter on the best interests of the child. Violation of the commercial surrogacy prohibition attracts a fine or imprisonment of up to ten years. The Children’s Act is enforced through the High Court, which retains supervisory jurisdiction. There is however no separate regulatory agency; the Department of Social Development, the Department of Health, and the High Court together constitute the institutional framework. This integrated model has proven workable, though scholars have noted gaps in the protection of commissioning parents in cases where the surrogate terminates the agreement.
  • United Kingdom: The United Kingdom regulates surrogacy through the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008, administered by the Human Fertilisation and Embryology Authority (HFEA).[12] The HFEA is a dedicated statutory body established to regulate fertility treatment and research. It licenses and inspects clinics, maintains a register of donors and children born through licensed treatment, and issues a Code of Practice that governs all licensed activities. Under UK law, surrogacy agreements are not legally enforceable contracts. The birth mother — even a gestational surrogate — is always the legal mother at birth. To transfer legal parenthood to the commissioning parents, a Parental Order must be obtained from the Family Court within six months of the child’s birth. The court grants a Parental Order if satisfied that the commissioning parents are domiciled in the UK and that the surrogate consents freely and with full understanding. Commercial surrogacy is prohibited, though reasonable expenses may be paid. The HFEA’s Code of Practice provides detailed guidance on the welfare of the child, consent, and clinical standards. The UK model shows that a specialist regulatory agency — rather than a ministry — can effectively oversee a sensitive reproductive health sector. The HFEA operates at arm’s length from government, maintains an independent board, and exercises quasi-judicial functions through its licensing committees.
  • India: India’s regulatory experience is instructive as a cautionary tale and a model of progressive reform. For over a decade, India was a global hub for commercial surrogacy, largely because the practice was unregulated and surrogates were extremely cheap.[13] Reports of exploitation and trafficking like in the case of Nigeria with “baby- factory” menace eventually prompted legislative action. The Surrogacy (Regulation) Act, 2021 now prohibits commercial surrogacy entirely, permitting only altruistic surrogacy between close relatives. The Act establishes National and State Surrogacy Boards as the regulatory institutions, and requires all surrogacy clinics to be registered. The National Surrogacy Board, chaired by the Minister of Health and Family Welfare, advises the central government on policy, lays down standards, and oversees the State Boards. Only married Indian couples who have been married for at least five years and can establish medical necessity may commission surrogacy. The surrogate must be a married woman with at least one biological child of her own. Violations attract imprisonment of up to ten years and substantial fines. India’s model illustrates that without regulation, commercial surrogacy generates exploitation; with over-regulation, it risks excluding those with a genuine medical need.
  • THE NEED FOR A NATIONAL INSTITUTIONAL AND LEGAL FRAMEWORK
    • The Legislative Gap and Its Consequences: Nigeria currently has no statute specifically regulating surrogacy or assisted reproductive technology at the federal level. The Assisted Reproductive Technology (Regulation) Bill 2016, which was introduced in the Senate and passed a second reading in October 2017, was not enacted into law.[14] The 10th Assembly reintroduce a new bill titled The Nigeria Surrogacy Regulatory Commission Bill 2024 (HB 1137), sponsored by Hon. Olamijuwonlo Ayodeji Alao-Akala of Ogbomoso North/South/Oriire Oyo state,[15] seeks to establish the Nigerian Surrogacy Regulatory Commission (NSRC) to monitor, register, and oversee all surrogacy arrangements and agencies. It permits only altruistic surrogacy and bans commercial surrogacy, so surrogates can be reimbursed for medical/pregnancy expenses but not paid a fee. To qualify, a surrogate must be at least 21 years old, have given birth before, pass medical/psychological screening, and give free informed consent, with coercion prohibited. The Bill mandates counselling for surrogates and intended parents, guarantees pre-natal and post-natal care, and requires compensation for all pregnancy/childbirth costs. It proposes penalties of up to ₦2 million fine, 2 years imprisonment, or both for commercial surrogacy, coercion, or non-compliance. The Bill passed second reading in the House of Reps in Oct 2024 and had its first reading on May 21, 2025 under the title “A Bill for an Act to Protect the Health and Well-being of Women, Particularly in Relation to Surrogacy”.
  • It is worth noting that, there are other existing legislation that is against surrogacy in Nigeria. The National Health Act 2014, in its Section 10, is widely interpreted to prohibit manipulation of genetic material, which would cover IVF, yet no fertility practitioner has been prosecuted, demonstrating that the provision is not enforced and may not have been intended to cover therapeutic ART.[16] The practical consequences of this vacuum are severe. Surrogacy agreements entered into in Nigeria are of uncertain enforceability. No court has ruled on the legal validity of a surrogacy contract. If a surrogate refuse to surrender the child, the commissioning parents have no statutory remedy; they would have to rely on the general law of contract, which courts may decline to apply given the unique subject matter, and on adoption law, which presupposes that they are strangers to the child. If intended parents refuse to accept the child, the surrogate is left holding a baby she agreed to relinquish, with no legal mechanism to compel the intended parents to take custody. The child faces a potential void on the birth certificate, which has cascading consequences for nationality, passport issuance, school enrolment, and inheritance.
  • Legislative Placement: Exclusive or Concurrent List?: One of the threshold constitutional questions in legislating on surrogacy in Nigeria is whether the subject matter falls within the Exclusive Legislative List (Schedule II, Part I of the Constitution), which assigns matters solely to the National Assembly, or within the Concurrent Legislative List (Schedule II, Part II), which permits both federal and state legislatures to legislate, with federal law prevailing in cases of inconsistency. The argument for placing surrogacy regulation on the Exclusive List rests on several grounds. First, surrogacy is inextricably linked to medical practice and the regulation of medical facilities, which falls within the federal government’s exclusive competence under Entry 61 of the Exclusive List (registration of medical practitioners and the supervision of their practice). Second, the citizenship and nationality implications of surrogacy — particularly in cross-border arrangements — engage matters on the Exclusive List. Third, a fragmented, state-by-state approach would create ‘surrogacy tourism’ within Nigeria, with intended parents shopping for the most permissive state, as has occurred in the United States. A single national standard is therefore more appropriate. Conversely, health services are substantially a state matter, and the regulation of medical facilities is concurrent. The Lagos State Guidelines demonstrate that states can and do legislate in this space. The argument for concurrent jurisdiction is that it allows states to tailor requirements to their local cultural and religious contexts while a national minimum standard applies across the federation.The most defensible position is that the core aspects of surrogacy regulation — legal parentage of the child, enforceability of surrogacy contracts, citizenship of children born through surrogacy, and minimum standards for fertility clinics — should be legislated at the federal level under the Exclusive List, while ancillary matters such as licensing of clinics and local enforcement mechanisms may be devolved to states as concurrent matters. This mirrors the structure adopted in India, where a central Act coexists with State Surrogacy Boards.
  • The Regulatory Institution: Ministry or Dedicated Agency? A critical design question is whether the regulation of surrogacy and assisted reproductive technology should be assigned to the Federal Ministry of Health or entrusted to a dedicated, specialist regulatory agency. The comparative survey above is instructive. South Africa vests oversight in the High Court (for individual surrogacy agreements) and the Department of Social Development and Department of Health (for general policy). There is no standalone agency. India’s Surrogacy (Regulation) Act 2021 establishes dedicated National and State Surrogacy Boards, chaired by senior government officials, with multi-sectoral membership including medical professionals, lawyers, and civil society representatives. The United Kingdom, most notably, established the HFEA as a standalone, independent statutory body. A dedicated agency is preferable for Nigeria for several reasons. The Federal Ministry of Health already carries a vast portfolio and has historically been under-resourced. The regulation of assisted reproduction requires specialist expertise in reproductive medicine, genetics, bioethics, and family law that a generalist ministry is unlikely to develop or retain. A dedicated National Assisted Reproductive Technology Regulatory Agency (NARTRA) — modelled on the HFEA — would have focused expertise, would be insulated from routine ministerial politics, and would command the confidence of medical professionals, patients, and the public. Such an agency should be established by statute, with a governing board composed of representatives of the medical profession, legal profession, civil society, women’s rights organisations, and independent public members. It should be empowered to licence and inspect clinics, maintain a national registry of surrogates, donors, and children born through ART, issue binding codes of practice, investigate complaints, and impose sanctions including revocation of licences.
  • Challenges and Limitations: Religion, Culture, Social Resistance and Conflicting Laws
    • Challenges from Islamic Perspectives: The most sustained religious objection to surrogacy in Nigeria comes from Islamic scholars, given the country’s substantial Muslim population concentrated in the North. The dominant Sunni position, affirmed by both the Muslim World League’s Islamic Fiqh Council (1985) and the Organisation of Islamic Conference’s Fiqh Council (1986), is that surrogacy is impermissible (haram) in all its forms.[17] The principal textual bases are Qur’anic verses al-Mu’minun 5-7 and al-Ma’arij 29-31, which enjoin Muslims to guard their chastity, interpreted to prohibit the insemination of a man’s sperm into the womb of a woman who is not his wife.[18] Additional objections centre on the risk of mixing of lineage (ikhtilat al-ansab), which Islamic law regards as a grave harm.[19] Scholars also invoke the concept of gharar (contractual uncertainty) — a surrogacy contract cannot guarantee a healthy child or even the survival of the surrogate — to characterise such agreements as void under Islamic jurisprudence.[20] Paid surrogacy is considered an especially grievous sin, as it reduces motherhood and the womb to a commodity.[21] It must be noted, however, that a minority of Islamic scholars and some Shi’a authorities permit surrogacy under strictly defined conditions — specifically, gestational surrogacy within a polygamous marriage where the egg of one wife is implanted in the womb of a co-wife, both married to the same man. Ayatollah Khamenei’s 1999 fatwa permitting egg and embryo donation under certain conditions has influenced practice among some Shi’a communities. The Islamic debate is therefore not entirely closed, and there is room for nuanced legislative accommodation.
  • Challenges from Christian Perspectives: Christian denominations in Nigeria are divided. The Catholic Church, following its consistent global position, views surrogacy as morally impermissible because it separates procreation from the conjugal act and treats the child as a product rather than a gift. Protestant and Pentecostal denominations take a range of positions, from cautious acceptance of gestational surrogacy within marriage, to outright opposition. The large and influential Pentecostal community in South-West Nigeria has been largely silent institutionally, though individual pastors have counselled against it. However, some Christian elders, such as Beatrice Oyimbo, defend surrogacy on biblical grounds. They cite Genesis 30:1-8 (NIV), where Rachel, unable to bear children, gave her maid Bilhah to Jacob as a wife so she could “build a family through her”. Bilhah bore two sons for Rachel. These elders argue that if reproductive technology had existed then, Jacob and Bilhah would have used it to give Rachel a child without sexual intercourse. Since the technology did not exist, Jacob had to sleep with Bilhah directly to fulfill Rachel’s request.
  • Traditional and Cultural Challenges: Traditional Nigerian culture, across all major ethnic groups, places extraordinary value on biological parenthood and natural conception.[22] Surrogacy is perceived as a disturbance of lineage, which is central to land ownership, inheritance, and social identity in most Nigerian communities. The fear that surrogacy could be used to obscure paternity and thereby disrupt patrilineal descent is particularly powerful in cultures where the child’s identity, name, and social position are derived from the father’s lineage. Social stigma compounds the cultural resistance. Infertility is rarely acknowledged publicly in Nigerian society; couples who resort to surrogacy frequently conceal the arrangement, presenting the surrogate-born child as naturally conceived. This concealment culture deprives surrogacy of the normalisation that public discourse might otherwise generate and reinforces the legal vacuum by reducing political pressure for reform.
  • SURROGACY BILL v. EXISTING LAWS: Illegal or Not? Another limitation or challenge to a legislation on surrogacy will encounter is that it will be fundamentally incompatible with existing Nigerian federal legislation. Most especially, Section 30(1) of the Child Rights Act 2003 expressly prohibits both commercial and altruistic surrogacy without distinction.[23] As a federal law enacted to protect the rights of Nigerian children, the Child Rights Act’s long title affirms its mandate to “provide and protect the rights of a Nigerian child and other related matters.” Any legislative attempt to legalise or regulate surrogacy, whether through altruistic framing or institutional oversight, therefore directly contradicts this statutory prohibition. A subsidiary legislation or regulatory bill cannot lawfully override an existing Act of the National Assembly on the same subject matter; to do so would render the proposed bills void for inconsistency.[24] Another legislation it will contradict is The Trafficking in Persons (Prohibition) Enforcement and Administration Act (“TIPPEA Act”) which provides an independent and equally decisive basis for the illegality of the proposal. Section 13 of the TIPPEA Act, read alongside its definition of “exploitation,” captures surrogacy arrangements within the scope of human trafficking — specifically where there is the giving or receiving of payments (as in commercial surrogacy) or the conferring of benefits to secure the consent of a person having control over another person (as in altruistic surrogacy).[25] The Act further defines exploitation to include “deprivation of the offspring of any person” and “practices similar to slavery or servitude,” provisions wide enough to encompass the commodification of a surrogate mother’s reproductive capacity.[26] Surrogacy arrangements that take advantage of a surrogate mother — whether through coercion, voluntary consent obtained under economic duress, or outright deception — are therefore criminalised as human trafficking offences punishable by a minimum of five years imprisonment, a fine of not less than ₦2,000,000, or both.[27]Since the TIPPEA Act is a federal law operational in all states of Nigeria, the proposal cannot effectively legalise what the Act already condemns.  The proposed bill equally offends the 1999 Constitution of the Federal Republic of Nigeria and Nigeria’s international treaty obligations. Sections 17(3)(h), 21, 33, 37, and 38 of the Constitution impose obligations on the state to promote the protection of the family, safeguard human dignity, and protect the right to life and privacy.[28] Surrogacy, by its very nature, instrumentalises the human body for reproductive ends and removes the natural bond between mother and child, thereby undermining the constitutional value of human dignity. Furthermore, Nigeria, as a signatory to the United Nations Convention on the Rights of the Child (CRC), is bound by Articles 7 and 8, which protect a child’s right to be registered at birth, to preserve their identity, and to have that identity restored where unlawfully denied.[29] Surrogacy arrangements compromise these rights by obscuring a child’s true biological origins and legal parentage, creating conditions of identity loss and legal limbo. Critically, consent between the contracting parties offers no legal refuge: under Nigerian law, two or more persons cannot lawfully agree to commit an act that is contrary to public policy or statute, and any such agreement constitutes the independent criminal offence of conspiracy.[30]
  • SOLUTIONS/RECOMMENDATIONS
    • Enactment Of A Comprehensive legislation: The National Assembly should urgently review and pass into law a comprehensive Assisted Reproductive Technology and Surrogacy (Regulation) Act. The 2016 ART Bill provides a useful starting point but requires significant revision to align with international best practices and address the gaps identified in this article.22 The legislation should: define surrogacy, IVF, and related concepts; establish the legal requirements for a valid surrogacy agreement; provide a mechanism for pre-birth orders declaring the commissioning parents as legal parents; define the legal status of the child; regulate the permissible forms of compensation; establish minimum standards for fertility clinics; and create criminal sanctions for violations.
  • Establishment Of A Dedicated Regulatory Agency: National Assisted Reproductive Technology Regulatory Agency (NARTRA) should be established by the same legislation. NARTRA should be modelled on the UK’s HFEA: independent of the Ministry of Health while remaining accountable to the National Assembly; led by a multi-disciplinary board; empowered to licence clinics, investigate complaints, maintain a national registry, and enforce standards through administrative sanctions and referral to prosecution authorities. Its funding should be secured through licensing fees and a statutory appropriation.
  • Regulation Of Commercial Surrogacy: Given the profound religious and ethical objections to commercial surrogacy, the legislation should expressly permit only altruistic surrogacy — arrangements where the surrogate is reimbursed for legitimate expenses but receives no profit — as the default position. However, in recognition of economic realities and the near-inevitability of some form of compensation in a country with widespread poverty, the legislation may provide for regulated commercial surrogacy subject to strict safeguards: judicial approval of the agreement, independent legal advice for the surrogate, a mandatory cooling-off period, and a cap on compensation set by the regulatory agency.
  • Sensitization and Cultural Accommodation: The federal and state governments should invest in public education campaigns to demystify surrogacy and assisted reproduction. These campaigns should be sensitive to religious and cultural contexts, engaging Islamic scholars, Christian leaders, and traditional rulers in the formulation of messaging. Northern states with Muslim majorities should be allowed to make surrogacy access conditional on additional requirements — such as requiring that both the intended parents and the surrogate be in subsisting marriages — without departing from the national minimum standard. This form of structured accommodation, similar to how Sharia-compliant banking operates within the national financial system, would reduce religious resistance without sacrificing legal coherence.
  • Pre-Birth Order mechanism: The legislation should provide for a pre-birth order procedure, allowing intended parents to apply to the Family Division of the High Court at least eight weeks before the expected date of delivery. The court should be empowered to declare the intended parents as the legal parents of the child from the moment of birth, with the surrogate’s consent verified and on record. This eliminates the legal uncertainty about the child’s parentage and ensures that the child can be registered, issued a birth certificate, and admitted to hospital care without complication.
  • Amendment Of Existing Laws: The limitations arising from the conflict between the proposed surrogacy bills existing Nigerian laws principally the Child Rights Act 2003, the TIPPEA Act, the 1999 Constitution, and Nigeria’s obligations under the UN Convention on the Rights of the Child can be comprehensively resolved through a three-pronged legislative strategy. First, the  the bill should introduce a consequential amendment to Section 30(1) of the Child Rights Act to carve out strictly regulated surrogacy arrangements, thereby eliminating the foundational inconsistency that currently renders the bills void under Section 4(5) of the Constitution. Second, a non-obstante clause should be incorporated into the surrogacy legislation — and a corresponding amendment made to the TIPPEA Act — explicitly excluding court-approved surrogacy arrangements from the definition of trafficking or exploitation, provided robust safeguards are met, including independent legal representation for surrogate mothers, mandatory medical screening, and judicial pre-approval of all surrogacy agreements. Third, the bill should be redesigned to include a Rights of the Child Chapter that mandates a best-interests-of-the-child assessment before any arrangement is approved, a National Surrogacy Register guaranteeing every child born through surrogacy a legally protected right of access to their biological origins upon majority, and an explicit decriminalisation clause shielding parties to court-approved agreements from liability for conspiracy or unlawful custody under the Criminal Code thereby producing a constitutionally coherent, rights-compliant legislative framework capable of withstanding judicial scrutiny.
  • CONCLUSION: Surrogacy in Nigeria is not a possibility that the law may choose to entertain or reject at leisure; it is an ongoing social reality that the law has thus far declined to acknowledge. The consequences of that silence fall hardest on the most vulnerable: surrogates who bear the physical and emotional burden of pregnancy without legal protection; intended parents who spend enormous sums of money and emotional capital on arrangements that can be dismantled at any moment; and children whose legal identity may be in doubt from the moment of their birth. The imperative for legislation is clear, the comparative models are available, and the institutional design questions are tractable. What remains is political will. The National Assembly has twice been presented with Bills that could have resolved these issues; on both occasions the Bills lapsed. A third attempt must succeed. Nigeria’s obligations under international human rights law, the wellbeing of thousands of families, and the dignity of the women who carry these children demand nothing less.

Zhihwi Dauda Esq. (LL. B, B.L, LL.M, ACE, FCIT, PGDE) E-mail: [email protected] Phone: 08059538671 And Abdullahi Abbas Muhammad (LL.B, BL) E-mail: [email protected] 08169937714

[1] Omolumo Adeife, ‘A Legal Perspective to the Law and Practice of Surrogacy in Nigeria’ (Mondaq, 2020) <https://www.mondaq.com/nigeria/family-law/1280312> accessed 5 June 2026; Nordica Fertility Centre, ‘Our Services’ <http://www.nordicafertility.com> Accessed 5 June 2026

[2] Actress Abiola Adebayo, Husband welcome first child’ Daily Independent (Lagos, 2023).

[3] A Isawumi, ‘Management of Infertility: A Broad Overview’ (2011) Journal of Obafemi Awolowo University Medical Students Association (IFEMED); CB Polis and others, ‘Estimating Infertility Prevalence in Low-to-Middle-Income Countries’ (2017) Human Reproduction.

[4] . Lolade Akinmurele, ‘Nigeria’s Declining Fertility Rate Contradicts Population Estimate’ BusinessDay (Lagos, 2023).

[5] OA Makinde and others, ‘Baby Factories Taint Surrogacy in Nigeria’ (2015) Reproductive BioMedicine Online 1; OA Makinde, ‘Infant Trafficking and Baby Factories: A New Tale of Child Abuse in Nigeria’ (2016) 25 Child Abuse Review 433.

[6] OS Adelakun, ‘The Concept of Surrogacy in Nigeria: Issues, Prospects and Challenges’ (2018) 18 African Human Rights Law Journal 605, 613.

[7] . A v C (1978) 8 Fam Law 170 [1985] FLR 445; In Re Baby M (1988) 109 NJ 396 (New Jersey Supreme Court).

  1. Children’s Act 38 of 2005 (South Africa), Ch 19, ss 292-303.

[8] National Library of Medicine, ‘Insight into Different Aspects of Surrogacy Practices’ (2018) PMC6262674 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6262674> accessed 7 June 2026.

[9] JO Fadare and AA Adeniyi, ‘Ethical Issues in Newer Assisted Reproductive Technologies: A View from Nigeria’ (2015) 18 Nigerian Journal of Clinical Practice S57.

[10] Lagos State Ministry of Health, ‘Guidelines on Assisted Reproductive Technology Practice in Lagos State’ (2019); ‘Lagos Unveils New ART Guidelines’ The Nation (Lagos, 2019).

[11] Children’s Act 38 of 2005 (South Africa), Ch 19, ss 292-303.

[12] Human Fertilisation and Embryology Act 2008 (UK), ss 33-58; Surrogacy Arrangements Act 1985 (UK).

[13] A Finkelstein and others, ‘Surrogacy Law and Policy in the US: A National Conversation Informed by Global Lawmaking’ (2016) Report of the Columbia Law School Sexuality and Gender Law Clinic, 11.

[14] Assisted Reproductive Technology (Regulation) Bill 2016, Senate of the Federal Republic of Nigeria, Order Paper (3 November 2016); Adelakun (n 6) 616-618.

[15] https://www.scribd.com/document/826284511/Surrogacy-Bill-8-Oct-2024-combined-organized

[16] National Health Act 8 of 2014, s 10

[17] . Tawfique Al-Mubarak, ‘Surrogacy and Islam: Between Permissibility and Prohibition’ (2014) Islam and Civilisational Renewal 277, 278; Islamic Fiqh Council, Eighth Session (Makkah Mukarramah, January 1985).

[18] . Qur’an, al-Mu’minun 5-7; al-Ma’arij 29-31; al-Nahl 72; Al-Mubarak (n 16) 278.

[19] . Aref Abu-Rabia, ‘Infertility and Surrogacy in Islamic Society’ (2013) 6 The Open Psychology Journal 54, 56; Islamic Fiqh Council, Eighth Session (n 16).

[20] Zayad Ahmad Salamah, Atfal al-Anabib: Bayn al-‘Ilm wal-Shari’ah (2nd edn, Arab Scientific Publishers 1998) 139; Abu-Rabia (n 18) 56.

[21] Maher M Hathout, ‘Surrogacy — An Islamic Perspective’ (1989) 21 Journal of the Islamic Medical Association of North America 105, 106.

[22] . FT Christiana, ‘Surrogate Motherhood: A Philosophical Discourse’ (2013) 4 Journal of Emerging Trends in Educational Research and Policy Studies 575; CS Sanders, ‘Surrogate Motherhood and Reproductive Technologies: An African-American Perspective’ (1992) 25 Creighton Law Review 1708.

[23] Child Rights Act 2003, s 30(1

[24] See the principle of inconsistency under s 4(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

[25] Trafficking in Persons (Prohibition) Enforcement and Administration Act (TIPPEA Act)S 13

[26] TIPPEA Act, s 2 (definition of “exploitation”)

[27] TIPPEA Act, ss 12–13

[28] Constitution of the Federal Republic of Nigeria 1999 (as amended), ss 17(3)(h), 21, 33, 37, 38

[29] United Nations Convention on the Rights of the Child 1989, Arts 7–8

[30] Criminal Code Act, s 516 (conspiracy to commit a felony).

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