Authored By: Nwobi Uzoma Jennifer
Afe Babalola University Ado-Ekiti
Abstract
This article examines the legal vacuum surrounding surrogacy in Nigeria, where surrogacy operates in a gray area that is neither expressly outlawed nor formally recognized by law. Assisted Reproductive Technology (ART) is on the rise, and the lack of a comprehensive legal framework exposes the intending parents, surrogates, and children to many risks, such as exploitation and questions of legal parentage. This article will examine the current reliance on general contract law and other laws, such as the Child’s Rights Act, and how these laws inadequately handle surrogacy agreements. It argues that these gaps compromise the child’s best interests and the protection of the other involved persons, and as a result, undermine reproductive autonomy, expose vulnerable women to exploitation, and could expose the children born from these agreements to uncertain legal positions. It suggests a structured regulatory system that offers a compromise between legal certainty and ethical protections, focusing on comparative models and recent legislative developments.
- Introduction
In Nigeria, many people see becoming a parent as a communal duty and as a personal goal. This is because reproduction is very much a societal and cultural expectation in most places in Nigeria. When couples are unable to have children, there usually follows a societal stigma and personal pain; as a result, most infertile couples turn to surrogacy and other alternative reproduction methods. Alternative reproductive options have increased rapidly due to advancements in Assisted Reproductive Technology (ART), but unfortunately, the Nigerian legal framework has not adapted as quickly.
Surrogacy is currently unregulated and is sometimes described as a privilege available mainly to those with financial advantages.[1] Because there is little government supervision, surrogacy arrangements are mostly controlled by private contracts made possible by fertility clinics. Lack of statutory regulation has encouraged unethical behaviour, for example, unlicensed reproductive businesses and exploitative agreements that put vulnerable women at risk of financial exploitation, and disputes regarding parental rights may arise.[2]
The Legal Vacuum on Surrogacy in Nigeria
Nigeria currently operates in a legislative vacuum when it comes to surrogacy. There is no specific federal law governing the practice, which leaves it in a middle ground, which means that surrogacy is neither illegal nor formally recognized. Because there are no targeted laws regarding surrogacy, legal practitioners usually rely on a mix of the Constitution, Child Protection Act, health laws, and basic contract principles.
The 1999 Constitution does not provide for surrogacy or the use of assisted reproductive technologies.[3]The Child’s Rights Act of 2003 was written before assisted reproductive technology became widely spread, and as such, it does not regulate surrogacy. Today, lawyers refer to Section 30 of the Children’s Rights Act, which bans buying and selling children.[4] during discussions involving surrogacy. And so even though this provision was not made with ART in mind, it is often used as the primary reference when distinguishing legitimate ethical surrogacy agreements from those that can amount to trafficking or buying and selling of children.
Similarly, the National Health Act 2014 regulates the provisions of health care services, but is also silent on ARC procedures.[5] There are no specified statutory provisions regarding fertility clinics, consent, medical protocols, or compensation agreements, and so in practice, this silence has resulted in a gap where clinics operate without a unified standard. And so, in the absence of specified legislation, surrogacy agreements are usually regulated by the terms of the private contractual agreements between the intended parents and the surrogate mother.
There is no specific decision that has been made in court that establishes clear principles on the validity or enforcement of surrogacy contracts. The lack of a judicial decision leads to most practices operating in uncertainty. To make up for this, many fertility clinics use international ethical and procedural guidelines, especially the ones developed by regulatory bodies in jurisdictions where ARC is more regulated.[6].
This vacuum is what causes vulnerability to the intended parents, the surrogate mother, and the children from these agreements. The intended parent’s custody can be called into question if the surrogate ends up refusing to release the child after the birth. And without statutory recognition of their parenthood, the process of obtaining custody becomes subject to complex legal processes. Surrogate mothers are also exposed to risks such as financial exploitation and coercive contractual terms of the surrogacy agreement.[7] . Because surrogacy agreements are primarily regulated through private contracts, enforcement of compensation and other terms agreed upon can be uncertain.
Finally, the children born from these agreements are also very legally vulnerable. Because of the lack of legal provisions, the woman who gives birth to the child, who is referred to as the surrogate, is usually regarded as the child’s mother.[8], and so the child’s legal identity is left uncertain until the parental rights are transferred through legal processes. Because of all this uncertainty, there may be issues concerning the child’s custody, inheritance, and sometimes even nationality.
There has been legislative progress; for example, the Surrogacy Regulatory Commission Bill has been suggested as a potential framework for establishing clear legal protections for surrogacy arrangements in Nigeria.[9]
Examining international approaches to surrogacy regulation provides useful insight for Nigeria’s potential legal reforms on the subject. Different jurisdictions have adopted different regulatory systems that range from outright prohibition to tightly controlled legalisation. The United Kingdom allows altruistic surrogacy but prohibits commercial surrogacy arrangements. The Surrogacy Arrangements Act 1985 regulates surrogacy agreements while preventing financial exploitation of surrogate mothers.[10] Under UK law, intending parents must apply for a parental order after the child’s birth to obtain legal parentage of the child.[11]
Similarly, South Africa provides a more comprehensive legislative framework through their Children’s Act 2005[12]. The Act provides that parties to surrogacy agreements must obtain the approval of the court before they begin the procedure.[13] This provision serves as a safety net to ensure that surrogacy arrangements comply with the established legal standards and protect the interests of the child, surrogate, and intending parents.
Toward a Nigerian Regulatory Framework
Nigeria’s growing use of assisted reproductive technologies highlights the urgent need for a comprehensive regulatory framework. Surrogacy serves as a crucial alternative for couples and individuals battling with infertility, but the current regulatory vacuum on the subject leaves the parties involved, being the intended parents, the surrogates, and the children, open to legal, financial, and ethical vulnerability.[14] Nigeria’s current reliance on the general principles of contract law and fragmented statutory provisions is inadequate for many reasons, one of the major ones being the fact that surrogacy involves the creation of human life and the alteration of familial status, matters that transcend the scope of mere commercial or civil agreements.[15] Without specific legislative intervention, the risk of disputes regarding parental responsibility, citizenship, and the potential for reproductive exploitation remains high.
The Surrogacy Regulatory Commission Bill is a key instrument in addressing these gaps.[16] For the regulatory system to be effective, it should incorporate the following:
- Institutional Oversight: The establishment of a National Regulatory Body tasked with the licensing of fertility clinics and the enforcement of ethical medical standards.
- Procedural Safeguards: Mandatory written agreements preceded by rigorous psychological and medical screenings for all parties.
- Preventive Regulation: Strict guidelines on compensation to distinguish altruistic motives from commercial exploitation.
- Legal Certainty: Clear statutory mechanisms for the transfer of parental rights and the protection of the child’s identity and nationality.[17]
One potential solution is the establishment of a national regulatory body responsible for overseeing assisted reproductive technologies and surrogacy practices. Such a body could give license to fertility clinics, establish ethical guidelines, and monitor compliance with medical and legal standards. A system of judicial pre-approval of surrogacy agreements should be considered and implemented. This will mandate the requirement of a court to validate surrogacy agreements before implantation and ensure that the “best interests of the child” principle is prioritized from the point of conception.[18]
To conclude, the rapid advancement of Assisted Reproductive Technology in Nigeria has outpaced the development of the current available legislature, which creates an uncertain grey area where reproductive dreams often collide with legal uncertainty. As this article has demonstrated, the current reliance on a patchwork of general contract principles and loosely applied statutes like the Child’s Rights Act is a fundamentally flawed approach.
The existing legislative vacuum does more than just create ambiguity. It actively endangers the parties involved (parents, surrogate, and child). For intending parents, the lack of statutory recognition of their parenthood creates instability. For surrogate mothers, the absence of standardized medical and psychological protections may lead to exploitation. And for the children born from these arrangements, the lack of a clear legal identity threatens their rights to inheritance, nationality, and stable custody.
Comparative systems from the United Kingdom and South Africa provide a clear roadmap for the way forward for Nigeria, which is in structured, altruistic regulation rather than silence or outright prohibition. The proposed Surrogacy Regulatory Commission Bill offers a vital opportunity to transition from a “gray market” to a transparent, rights-based system. By incorporating mandatory court pre approval, strictly monitored clinic licensing, and clear mechanisms for the transfer of parental rights, the “best interests of the child” can be safeguarded.
Ultimately, the goal of a Nigerian regulatory framework should be to honor the reproductive autonomy of its citizens while maintaining the highest ethical standards. As surrogacy becomes an increasingly common path to parenthood in Nigeria, the state must move with urgency to provide the legal certainty necessary to protect the sanctity of the family and the inherent rights of every Nigerian child.
BIBLIOGRAPHY
Primary Sources
Table of Cases
R v Secretary of State for Health, ex parte Quintavalle [2003] UKHL 13.
Table of Legislation
Nigeria
Child’s Rights Act 2003.
Constitution of the Federal Republic of Nigeria 1999 (as amended).
National Health Act 2014.
Surrogacy Regulatory Commission (Establishment) Bill 2023.
South Africa
Children’s Act 38 of 2005.
United Kingdom
Human Fertilisation and Embryology Act 2008.
Surrogacy Arrangements Act 1985.
Secondary Sources
Journal Articles
Nadesan S, ‘The Need for a Legal Framework for Surrogacy in Nigeria’ (2021) 12 Nigerian Juridical Review 45.
Obasola AO, ‘Legal and Ethical Issues in Surrogacy: The Nigerian Perspective’ (2023) 4 Journal of Health Law 50.
Reports, Policy Briefs, and Websites
AOC Solicitors, ‘Surrogacy in Nigeria: Legal Framework, Challenges, and the Need for Regulation’ (2025) https://www.aocsolicitors.com/surrogacy nigeria accessed 3 April 2026.
Hague Conference on Private International Law, International Principles on Surrogacy (2023).
Health Ethics and Law Consulting, The Future of Surrogacy in Nigeria (Policy Brief, 2025).
World Health Organization, Ethical Guidelines for Assisted Reproductive Technologies (WHO 2017).
[1] AOC Solicitors, ‘Surrogacy in Nigeria: Legal Framework, Challenges, and the Need for Regulation’ (2025)
[2] Health Ethics and Law Consulting, The Future of Surrogacy in Nigeria (Policy Brief 2025).
[3] Constitution of the Federal Republic of Nigeria 1999 (as amended).
[4] Child’s Rights Act 2003, s 30.
[5] National Health Act 2014
[6] World Health Organization, Ethical Guidelines for Assisted Reproductive Technologies (WHO 2017).
[7] A O Obasola (n 4) 50.
[8] Child’s Rights Act 2003.
[9] Surrogacy Regulatory Commission Bill
[10] Surrogacy Arrangements Act 1985 (UK).
[11] Human Fertilization and Embryology Act 2008 (UK).
[12] Children’s Act 2005 (South Africa).
[13] Children’s Act 2005 (South Africa).
[14] Smitha Nadesan, ‘The Need for a Legal Framework for Surrogacy in Nigera’ (2021) 12
[15] R v Secretary of State for Health, ex parte Bruno Quintavalle [2003] UKHL 13.
[16] Surrogacy Regulatory Commission (Establishment) Bill 2023 (Nigeria).
[17] International Principles on Surrogacy (The Hague Conference on Private International Law 2023).
[18] Children’s Act 38 of 2005 (South Africa), s 292.
