Funmilayo Olagunju

The second definition of surrogacy by Blacks Law dictionary is more relevant to this content: the process of carrying and delivering a child for another person.

A female that carries a foetus for another woman is called a surrogate.

The person who intends to have a child through a surrogate is the commissioning/intended parent.

Surrogacy is said to be compensated when there is a consideration furnished or promise attached to it. When there is no compensation attached to the arrangement, such surrogacy agreement is described as altruistic.

There are two types of surrogacy:

Gestational surrogacy: this is a form of womb leasing to a child that is not biologically related to the surrogate mother. The embryo is created using the egg and sperm of the commissioning parents or donor through invitro fertilization (IVF) before it transferred to the surrogate for implantation and delivery. It is a form of Assisted Reproductive Technique (ART).

Traditional surrogacy: this is a situation where the egg of the surrogate is fertilized by a sperm of the commissioning parent or donor through intercourse or artificial insemination. The child is genetically related to the surrogate mother.

In Nigeria, surrogacy is not ordinarily a crime if there is no misrepresentation or use of force. However, the enforcement of Surrogacy agreement might be challenging due to lack of definite legal framework (statutes) and court pronouncement (local case laws) on the issue. The level of social and cultural acceptance of surrogacy is low.

The confidentiality of an undisclosed donor, data privacy, parental claim, enforcement of remuneration in compensated arrangement, dispute resolution between surrogate and commissioned parent are some of the incidental legal issues from surrogacy.

Keeping females of reproductive age as hostage for the purpose of procreation is not surrogacy. “Baby factory” is illegal and not a licensed ART clinic.

The right of a child is of paramount interest to the Law. A child born from surrogacy should not be discriminated against based on the circumstance surrounding his/her birth.

And Sarai said to Abram, “Behold now, the LORD has prevented me from bearing children. Go in to my servant; it may be that I shall obtain children by her.” And Abram listened to the voice of Sarai.

Genesis 16:2 (ESV)