‘I Can’t Allow My Wife Take Sperm From Another Man — Husband Says As Lawyer Warns Of Legal Implication Of Surrogacy

An Abuja-based legal practitioner, Barrister Tunde Falola, has warned those engaging in the act of surrogacy in Nigeria to desist from such practice because it runs contrary to Nigerian laws.

Surrogacy is the practice where a woman (a surrogate) carries a child for another person (the commissioning or intending parents) based on a prior arrangement that the child would be handed over to the commissioning parent at birth.

The practice in most cases is sought for when pregnancy is medically impossible, pregnancy risks are dangerous for the intended mother, or when a single man or woman wishes to have a child.

But Falola described surrogacy as a “criminal offence” in Nigeria and advised couples experiencing difficulties having children to go for adoption instead of surrogacy.

The lawyer gave the advice against the backdrop of the seeming gradual acceptance of surrogacy amongst Nigerians.

“Surrogacy in ordinary parlance is an agreement whereby a person (the surrogate mother) bears a child for another person (the commissioner) and the surrogate mother, unconditionally hands over all rights concerning the child, including the child’s (custody) upbringing, care and legal parenthood to the commissioner,” Falola explained in an interview with THE WHISTLER.

He stated that there are two major forms of surrogacy based on scientific research, namely the “Gestational surrogacy – This occurs when the surrogate mother is implanted with an In-vitro fertilized embryo from the parents or donors” and “The Traditional surrogacy – Under this arrangement the commissioner does not contribute anything genetically.”

Falola further explained that surrogacy involves “an agreement between parties over renting of the womb and dealing on babies, in some cases, particularly under gestational surrogacy the egg or spermatozoa or either of them may not be the property of the surrogate mother but the surrogate mother carries the baby until delivery.”

While noting that there are no specific laws regulating surrogacy in Nigeria, the circumstances surrounding the practice could be illegal and constitute punishable offences.

“It is quite unfortunate that as of today, there is no law in force that regulates surrogacy in Nigeria. Notwithstanding the foregoing, one may be tempted to ask whether the practice is lawful? Unfortunately, the answer to this is negative. In other words, surrogacy practice in Nigeria is illegal and constitutes publishable offences under some of our laws.

“A critical examination of the provisions of some of our laws readily lend credence to the foregoing assertion, therefore, the law that readily comes to mind is the ‘Child Right Act’, a federal enactment that sets out to protect the right of every Nigerian child, this law has equally been domesticated in some states of the Federation particularly in the southern part both the ‘Child Rights Act’ as well as the Child Rights Laws of various states have similar provisions

“Therefore, a reference to ‘Child Rights Act’ in this context, is a reference to Child Rights Laws of all the states of the Federation. Let it be noted from the outset that ‘Child’ under the ‘Child Right Act’ includes an unborn and born babies

“Section 30 of the Act provides ‘No person shall sell, hire, let on hire, dispose of or obtain possession or otherwise deal in a child’ even though the section does not expressly mention “surrogacy”, there is no doubt the fact that the section expressly captures the processes involving surrogacy by forbidding ‘dealing, selling, hiring, let on hire or disposing of a child,” he said.

Falola also cited Section 13 of the Trafficking in Person (Prohibition) Enforcement and Administration Act which forbids trafficking in person, and Section 82 of the Act, saying, “Trafficking in-person ” includes ‘the giving or receiving of payment or benefits to achieve the consent of a person having control over another person or debt or bondage to place or hold the person whether for or not involuntary servitude in forced or bounded labour or in slavery-like conditions, the removal of organs or generally for exploitative purposes “

“It’s clear that both provisions of the laws cited above-criminalized exploitation of a Child as well as any person as the case may be, for material benefits which is the thrust of the surrogacy. To this extent, surrogacy is a criminal offence among practitioners. There is always an agreement to pay the surrogate mother for the exchange of the child she gives birth to. Once payment is received, she surrenders the right she has over the child to the commissioner. This is nothing but exploitation of the highest order.”

Some months ago, popular Nollywood actress, Ini Edo, became the second Nigerian celebrity to openly admit to welcoming a baby through surrogacy after ex-beauty queen Nike Osinowo did in 2013.

Some of the social media reactions to Edo’s revelation suggested that many Nigerians were open to the practice depending on the circumstances warranting it.

An Abuja-based programmer, Mr. Henry Onwa, told our correspondent in a chat that his wife has been suggesting Surrogacy to get him as a way for them to have a male child, but noted that he would rather go for adoption if he is not going to be the sperm donor.

Onwa, who has been married for 10 years, gave a condition under which he could support the practice.

“I don’t see anything wrong with surrogacy, I’m in support of that. It depends if it’s from the man’s side fine because I won’t allow surrogacy if another donor gives my wife sperm, I would rather go for adoption.

“Adoption, on the other hand, is easy to say but to adopt a child you have to be ready for it, psychologically and mentally you have to be ready to take in anything that comes with it.

“I have two daughters, but my wife is pressing to have a baby boy. Right now her system can no longer support childbearing, hence her reason for surrogacy. The doctor told her that she has fewer chances of conception, my last child is getting to six years, and there have been trials all these years…. Like I said earlier, the doctor told her that it will be difficult for her to conceive.

“For me, I’m fine, I don’t know why women are so concerned about things like this, but she is worried I have to let it be. I could end up with the two girls, I don’t have any issue with that, but I don’t know why she’s concerned.

On how they intend to get a surrogate if they decide on that as their final resort, Onwa said, “We have not decided that yet, I would prefer it comes within the family, the person could come outside of the family but I would want to know the background of the carrier.”

He further revealed that he is going to be the donor, but the surrogate mother’s eggs will be used and not his wife’s because she no longer ovulates.

On whether he has fears about surrogacy, Onwa stated that he would like to understand surrogacy laws in Nigeria if they exist.

“I don’t have fears but I would like to understand the surrogacy laws in Nigeria if there are any, and what the law says so you don’t create problems in the future other than solving a problem. Many people go into it without knowing the legal implications. If they do and I look at it and it’s favorable, then I’m fine.

“For me as a man, I shouldn’t exercise fear, because I’m going to be the donor after all. What’s anybody coming to claim, but to protect my wife whom I’m doing this because of, I will like to go into surrogate laws so that the carrier won’t come and say oh this is my child, for me, the paternity here already, so is not for me but I have to protect my wife,” he added.