Medically speaking, sperm donation is a situation where men donate their sperm cells for intending parents who are infertile. Sperm donation is not as rampant in Africa as we used to have it in other continents. It is a recent trend in medical world and it does occur in rare cases attributable to a man’s infertility.
By Bamidele Kolawole
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The above topic cannot be justify or give proper answer to if we did not look into right and duties of donor of sperm in Nigeria.
The question to be ask first is that do we have any law guiding the donation of sperm in Nigeria in which I have search the federal laws and states laws which I did not find one except Lagos state that had guidelines on Assisted.
Reproductive Technology in 2019 in which is about surrogacy issue. On the face of it’s, it shows that the donor of a sperm in Nigeria does not have any law guiding them on the outcome of their donation.
On the face of it’s, it shows that the donor of a sperm in Nigeria does not have any law guiding them on the outcome of their donation.
But in the modern world Sperm donor rights may also differ based on the jurisdiction and the details of any agreement with the receiver. In certain situations, sperm donors are anonymous, which means their identity is not revealed to the receiver or kid.
In other situations, a donor may consent to be known by the recipient or the child, and they may have the right to contact or be contacted by the child in the future.
In general, if a sperm donor is not married to the child’s mother, they have no inherent legal rights or duties as a parent. However, if a sperm donor and the mother sign a formal agreement ahead of time, the rules of that agreement will govern the donor’s rights and duties.
A sperm donor’s paternal rights might vary based on the laws of the state and the unique circumstances of each case. In general, unless they have entered into a formal agreement with the receiver or have been recognized as the legal father by a court order, sperm donors are not regarded to have any legal rights or duties as parents.
Yes, there are exceptions to the main norms governing the rights and duties of sperm donors. These exclusions might differ based on each case’s jurisdiction and facts.
Here are some instances of exceptions to sperm donor laws that may apply to your case:
Married sperm donors: If a married man gives sperm to a woman who is not his wife, he may still be recognized as the child’s legal father if both he and his wife agree to the donation.
Co-parenting agreements: In certain situations, a sperm donor and the child’s mother may engage in a co-parenting agreement that gives the donor some parental rights and obligations.
Custody and support conflicts: In certain situations, a sperm donor who has a previous arrangement with the child’s mother may still be compelled to pay child support or be engaged in custody battles if the mother and donor’s relationship breaks down.
Unmarried couples: If a sperm donor and the mother are unmarried partners in certain countries, the donor may have some parental rights and duties if they have lived together with the child or presented themselves as a family.
The rules and procedures governing sperm donation and parenthood may differ substantially between states. If you are thinking of being a sperm donor or utilizing a sperm donor, you should consult a skilled legal practitioner to understand your rights and duties.
In certain situations, a sperm donor and receiver may have already agreed on some degree of engagement in the child’s life, such as frequent visits or the opportunity to receive updates on the child’s life. The agreement may outline the scope of the donor’s engagement in certain circumstances, but it may not necessarily establish the donor as a legal parent.
A sperm donor may be able to establish their rights as a legal father via a court order. This may happen if the donor has a connection with the child and has claimed to be the father or if they are identified on the child’s birth certificate. In rare situations, a judge may rule that the donor has legal parental rights even though they did not previously agree with the receiver.
But in Nigeria today the sperm donor information are not been giving to the receiver and to get the details of such person maybe difficult except one out of hundred that the donor knows the receiver can approach the court of law that is if he has enough evidence to prove it even though you have such evidence the man maybe thinking of the consequence behind claiming same.
The Nigerian Law is silent on the issue of artificial insemination and on the question of whether a man who merely donates sperm can legally lay claim to child produced after the process.
Additionally, there are myriads of controversies surrounding the children born by means of artificial insemination as a result of the difficulty in ascertaining who the parents of the child are. For instance, in some settings where preference is given to the biological children of an individual, a child of a couple where the egg and sperm used are from donors, does such child qualify to be called the biological child of such individuals.
In another context, it is perceived that once a person exercises parental responsibilities over a child, he remains the father or mother of such child irrespective of the manner or form of birth of such child.
The use of artificial insemination as alternative form of procreation has however become a prevailing practice adopted by some Nigerians to solve certain reproduction malady.
Several factors ranging from erectile problems, infertility in men and women alike to mention a few are responsible for the resort to artificial insemination.
Although, there is no legal framework regulating this procedure in Nigeria, yet reference would be made to the Evidence Act, 2011 to ascertain the legality or otherwise of the rights of a sperm donor to lay claim to a child.
It is pertinent to also point out that the act of artificial insemination could involve the donation of sperm by the husband or a third party donor. In any case, dispute/issues may however arise irrespective of the circumstances of procreation.
Without further ado, the definition of Artificial Insemination vis a vis the provision of the extant law in different jurisdiction would throw light to the question of who has the right to legally lay claim to a child.
Artificial Insemination is defined according to the Black’s Law Dictionary, 9th Edition at page 128 as “a process for achieving conception, whereby semen is inserted into a woman’s vagina by some means other than intercourse; If the woman is married when the artificial insemination and the birth occur, and her husband has consented to the insemination, and the insemination is performed by a licensed physician, the husband is considered the father of the child. If the woman is unmarried at the time of the insemination, several factors, varying from jurisdiction to jurisdiction, determine whether the donor is considered the father of the child.”
A child on the other hand is defined according to the Black’s Law Dictionary, 9th Edition at page 271 as “a person under the majority. At common law, a person who has not reached the age of 14, a boy or girl; a young person”.
A child has also been described by an author, Ayo Oyalobi in his book “Better Protection for women and children under the law” in A.U Kalu (ed), Women and Children Under the Law Federal Ministry of Justice Law Review Vol 6 “a natural person who is an offspring of another (either by birth or adoption).
It may also represent any human being from the moment of his birth (in a live state) until the attainment of the age of majority”.
Artificial insemination by the husband also known as “Homologous Artificial Insemination” occurs when the semen donor is the recipient’s husband.
This method usually occurs when the husband is not sterile, but rather when he is impotent, or when the difficulty of natural conception lies with the wife.
“Heterologous Artificial Insemination” or “Artificial Insemination by donor” on the other occurs when the semen donor is someone other than the recipient’s husband.
Although, the position is not defined in Nigeria as there is no statutory regulation of relationship of parties involved. However, by virtue Section 165 of the Evidence Act, 2011 on the presumption of legitimacy, the husband is presumed to be the legitimate father of a child, particularly when the marriage between the man and the woman is valid or within 280 days after the dissolution of the marriage.
The inference to be drawn from the position of law is that where a married woman is artificially inseminated with the sperm of another man, there is a presumption of law that favours the husband of the intended mother as the father of the child regardless of whether there is genetic connection.
Despite the provisions cited above, the question of who can legally claim right over the child or children produced via artificial insemination is still yet unclear since there is no express reference to the issue of artificial insemination.This also leaves the question of the parental rights and obligations of both parents and even of the child unsettled.
However, in other jurisdictions, artificial insemination is recognized and codifies in their laws. In USA for instance, the Uniform Parentage Act, 1973 amongst others expressly stipulates that a husband of a woman artificially inseminated by donor sperm will be the legal father provided he has given consent in writing and signed by him and his wife, approving the process of artificial insemination on his wife.
The position of law on the relevant subject of discussion as applicable in the United Kingdom is however hinged on the issue of marriage and consent. The primary law is the Human Fertilization & Embryology Act, 2008.
Section 28 (1) (2) of Act inter alia stipulates that “if the intended parents are married, both will automatically be treated as the legal parents of any child conceived with donated sperm, provided the conception is by artificial insemination or IVF and not by sexual intercourse.
If the married woman is inseminated by a donor sperm, so far as her husband consents, he is to be regarded as the father of the child and not the donor of the sperm”
Unlike, in other jurisdiction, the issue of artificial is rather subjective, as same is dependent on the procedure adopted by individual to govern their conduct whether either party or both parties to a marriage give consent in writing just as it is applicable in other jurisdiction.
This may not be detached from the fact that Nigeria operates a mixed legal system which consists of the received English law, legislation, customary and Islamic law.
In conclusion, it is my opinion that the Nigeria lawmakers ought to look into the issue of artificial insemination and promulgate laws that will promptly address the issue of artificial insemination, the legal rights and status of the intended parents and other incidental matters once and for all in view of the emerging trends and the novel practice of artificial insemination in Nigeria.
Sperm donation is not as rampant in Africa as we used to have it in other continents. It is a recent trend in medical world and it does occur in rare cases attributable to a man’s infertility.
Medically speaking, sperm donation is a situation where men donate their sperm cells for intending parents who are infertile.
Now, when sperm cells are donated, it comes by a contract or mutual agreement which is subject to certain terms and conditions. The donor must have been paid for donating sperm and never looks back again as to what happens to his sperm.
This can only happen in Nigeria because if at the end of the day, the case goes to court, the court will ordinarily, order for a paternity test to be carried out to determine who fathers the child.
In this is case, the court will be compelled to allow the biological father to have the child. The only thing is that, the donee of the sperm would not be allowed to go home empty handed.
The court will be compassionate to award cost in his favour having spent money, time and other things raising the child. Ultimately, biology will take precedence over artificiality of some sort.
However, this position may be different in other part of the world as we have it in Africa or in Nigeria but generally, in Nigeria, the child can be claimed by the biological father regardless of whatever sentiments that may be expressed.
It is very certain that the birth of a human-child requires a male reproductive Material, to fertilize the female’s. The GOD of creation made the female ovary to be protein Specific, meaning that, a human egg will allow only the human spermatozoa to penetrate it for fertilization. Even if a dog had sex with a goat, they cannot produce offspring.
A Zebra can Cross-breed with a horse, because they are 2 varieties of the same family, likewise a Lion and a Tiger, both are cats. Having said that much, the paternity of every human being is determinable, even though, may need not be disclosed under certain conditions. As to whether a man who donated Sperm to fertilize a female to birth a child can claim the child, the answer will depend largely on the preceding events. The events can be deduced from the following questions;- How and Where the Donor & Recipient meet? Does the Donor & Recipient know each other? Was the Donation made to the Recipient by Proxy? Under each of the questions raised and some other facts, the answer will surely be different.
It is a common knowledge that there are Fertility Clinics where a woman can obtain sperm from the Clinic’s Sperm Bank without knowing the owner, even if the sperm container is labeled with the owner’s name. Some Donors could attach conditions such as wanting to know who gets the sperm, while some doesn’t care.
I will like to make reference to two well celebrated American cases, unfortunately I can only recount the facts but not the names nor citations. The first case involved a Fertility Clinic technician who Fertilized 5,000 (Five thousand) Recipients using his own sperm, over a period of 30years. When he was arrested following the insistence of a child to know his father, and it was discovered that the DNA Data base across America and Europe shows 5,000 people’s DNA matching the DNA of one and the same man.
On interrogation, the man revealed that it is normal for the Recipient to demand to know the owner of the sperm, but instead when he asked the “Victims” for their preference, they responded by saying that the man could use anybody’s sperm irrespective of race, so each time the man came across such women he ended up using his own sperm to conduct the exercise. The second case involved a female Medical Doctor and a male Professor, both were Colleagues and acquaintances at a University.
The female Medical Doctor visited the Professor and suggested they both had Oral-Sex. Unknown to the Professor, the lady kept the sperm in her mouth and safely hid it in a well concealed container while she went to clean up in the bathroom.
She fertilized herself with it, got pregnant and later came back to demand for the man’s involvement in the Child’s upbringing. I do not think that the NIGERIA Medical Law has Specific Provision for a Man to claim a child simply because he donated the sperm to produce the child.
If a childless couple gets a child with another Man’s sperm, I know that the legal father shall be the Legitimate father, more so it is of remote possibility that the owner of the sperm will get to know of the arrangement.
With or without an existing Nigerian Law, enabling a sperm donor to claim a child, the best such donor would get is a declaration that he is the biological father of the child, just for the records, nothing more, as the Legal Position as to the right of the Legal father of the child remains.
The only condition that can warrant a sperm donor to claim the child produced from the sperm is “if from the onset, he was part of the arrangement and he agrees to “co-parent” the child’s upbringing”.
At that point, if the woman attempted to deprive him of his right to the child, the Court will have no choice than to invoke the doctrine of Estoppel to allow the donor enjoy the fruit of his labour.
From the 2 cases I talked about, the court’s decision in each is instructive enough, from the first one, it was obvious the mothers wanted to remain sole owners without pointing a father before one of them started asking questions as to who the father was, the court only resolved the mystery of who is the father but not given the child to the father, who did not seek it anyway.
The second case, was more interesting, the trial Court ruled in favour of the Female Doctor who demanded involvement and maintenance cost, but in the end on Appeal, the man was relieved of the burden imposed on him by the earlier Judgement.
So impliedly, a Sperm Donor who was not part of the arrangement or agreed to be paid-off may not be able to lay claim to the result of the Sperm.
Yes he can claim the child , paternity is biological in Nigeria , if a DNA test is conducted and he’s found to be his father , come what may he’s the legitimately recognized father. Fatherhood in Nigeria is Biological.
It must be noted that there is no law governing Invitro-fertilization known as IVF under the Nigerian law. The absence of a predicable legal regime for this medical advancement has subjected legal issues emanating from IVF related cases to the vagaries of general principles of law.
Generally, a man who donates sperm for the conception and the birth of a child is the father of the child. The donation of the male or female egg which leads to conception and delivery of a child is what it takes generally to be the parent of a child.
However, controversies may ensue as to whether it is the egg of a particular man that was used by a woman since there was no intercourse. The best way to salvage the paternity of a child who is to be born through IVF where a man donates a sperm; is for the man and woman involved to enter into a contract in respect of the relationship.
Whether the man will be regarded as the father who will be able to claim the child depends on the terms of the contract. Since parties are at liberty to enter into contract freely and determine the terms of their contract; surrogacy contract; IVF contracts and assisted births contracts; to mention just a few are possible.
Moreover, the position of the law is that, he who asserts must prove. See Section 131 of the Evidence Act. 2011. Therefore, the burden is on any man who claims to have donated sperm for the birth of any child to prove the paternity of the child. DNA will be a veritable mechanism of prove in any case where the paternity of a child is in issue.
It must be noted that, paternity of a child born through sperm donations is one thing but who is to have custody of the child is another issue entirely.
In any case where the custody of a child is being disputed; the guiding principle is ‘the overall best interest of the child’. Obviously, where a child born through IVF, especially for parties who are not married is being disputed; the court will consider the best interests of the child in determining who has custody of the child. See Section 71 of the Matrimonial Causes Act.
Consequent upon the above, the yardsticks for determining the best interest of the child range from: educational arrangements made by the parties; accommodation; who has capacity to take better care of the child; the sex of the child; the age of the child to who the child is familiar with amongst the parties.
In conclusion, whether a man who donates sperm for the birth of a child can claim the child depends on the factors highlighted above.
The question of whether a man who donate sperm can claim the child in Nigerian law is a quest for us to know whether there is a legislation which provides such right for the donor or which recognises the act of the donor. Similarly, another question that bears in mind is whether or not there is issue of legitimacy of the child.
In our world today, and more specifically in the medicine, we do not only have blood donors, we now have sperm donors and the donee as the recipient. Some are of the opinion that sperm donors are like a solution and remedy to fertility problems particularly among couples. In the same vein, there are fertility centres – these are medical clinics that assist couples, and sometimes individuals, who want to become parents but for medical reasons have been unable to achieve this goal via the natural course.
Many of the fertility centres, in spite of non-availability of legislation regulating them in Nigeria, have taken cognizance of professional regulations and ethical roles in other jurisdiction and have adopted same as best practices.
In the United Kingdom, the Human Fertilisation and Embryology Act 2008 is the legislation which governs artificial insemination and sperm donation to licensed fertility centres.
It is beyond doubt that many couples who have conception and fertility problems in Nigeria have now taken privilege of this medical technology – a platform where some regard as a soothing relief to infertility problems in male so far a sperm donor can assist. Sperm donors are often seen at fertility centres and often times gets compensated for their donation to the fertility centre.
These centres often take into consideration the medical precautions and safety measures that are necessary before transfusion.
The Nigerian legal system operates written laws which are binding on all persons and authorities throughout the Federal Republic of Nigeria.
If we would consider the legitimacy of a child claimed by a sperm donor, we would aver our minds to what legitimacy is under the Evidence Act. Section 165 of the Evidence Act provides for the presumption of legitimacy.
Legitimacy is the status of a child who is born to parents who are legally married to one another or who is born within 280 days after dissolution of marriage.
The Nigerian customary marriages are by law legal and the child born in the marriage is legitimate. Legitimacy may be questionable where the child is not a product of the loins of the father who was infertile.
The status of the children born through this process is a subject we need to determine early enough or are the parents to be considered as a guardian or be determined as biological parents.
There are many questions that would be answered when there is a legislation which adequately guides and regulates this emerging area of medical practice in our country. These laws would ensure that only licensed centres provide these services to people, it can as well help regulate disclose and undisclosed paternity terms, confidential and privileged information and also provide a uniform standard of operation throughout the federation.
We might be at the risk of unforeseen legal problems if we do not have laws that can help us legislate on this emerging practice in our society.
