LAWGEEK LEARNING SERIES 2

Surrogacy can best be described as an arrangement, often supported by a legal agreement, whereby a woman (the surrogate mother) agrees to bear a child for another person or persons, who will become the child's parent(s) after birth.

There are several reasons why people will likely seek surrogacy as a fertility option to solve the reproductive health issues; 

- People usually seek surrogacy arrangements when natural conception and pregnancy is medically impossible.

- When pregnancy risks are too dangerous for the intended mother.

 - When a single man or a male couple wish to have a child. 

- When a female couple desires to have a child.

Surrogacy is considered one of many assisted reproductive technologies.

In surrogacy arrangements, monetary compensation  or considerations may or may not be involved,  Receiving money for the arrangement is known as commercial surrogacy. The legality and cost of surrogacy varies widely between jurisdictions, sometimes resulting in problematic international or interstate surrogacy arrangements. Couples seeking a surrogacy arrangement in a country where it is banned sometimes travel to a jurisdiction that permits it. In some countries, surrogacy is legal only if money does not exchange hands. 

Where commercial surrogacy is legal, couples may use the help of third-party agencies to assist in the process of surrogacy by finding a suitable surrogate and arranging a surrogacy contract with her. These agencies often screen surrogates' by conducting psychological tests and other medical tests to ensure the best chance of healthy gestation and delivery. They also usually facilitate all legal matters concerning the intended parents and the surrogate

The legality of surrogacy varies around the world. Many countries do not have laws which specifically deal with surrogacy. Some countries ban surrogacy outright, while others ban commercial surrogacy but allow "altruistic surrogacy" (a situation where the surrogate is not financially compensated). Some countries allow commercial surrogacy, with few restrictions. Some jurisdictions extend a ban on surrogacy to international surrogacy. In some jurisdictions rules applicable to adoptions apply while others do not regulate the practice.

The US, Ukraine, Russia and Georgia have the most liberal laws in the world, allowing commercial surrogacy, including for foreigners.Several Asian countries used to have liberal laws, but the practice has since been restricted. In 2015, Thailand banned commercial surrogacy, and restricted altruistic surrogacy to Thai couples. In 2016, Cambodia also banned commercial surrogacy. Nepal, Mexico, and India have also recently banned foreign commercial surrogacy. Surrogacy is legal and common in Iran; and monetary remuneration is practiced and allowed by religious authorities.

LAWS

Laws dealing with surrogacy must deal with; enforceability of surrogacy agreements. In some jurisdictions, they are void or prohibited, and some jurisdictions distinguish between commercial and altruistic surrogacy.

the different issues raised by traditional and gestational surrogacy

mechanisms for the legal recognition of the intended parents as the legal parents, either by pre-birth orders or by post-birth adoption.

Although laws differ widely from one jurisdiction to another, some generalizations are possible. 

The historical legal assumption has been that the woman giving birth to a child is that child's legal mother, and the only way for another woman to be recognized as the mother is through adoption (usually requiring the birth mother's formal abandonment of parental rights).

In Nigeria for instance; there are no laws governing surrogacy.

So this lack of legislation leaves parents and the surrogate vulnerable to inadequate medical screening, a lack of psychological support and excessive use of Caesarean sections.

And where disputes arise in such circumstances the courts are likely to follow common law precedents recognizing the rights of both parties in a surrogacy contract, just like any other contract under the common law.

This above position puts the surrogate in an excessively risky position as complications arising out of the arrangements may never be well captured .

Nigeria currently has a bill that has been before the National assembly which ofcourse we hope can be passed into law but it is my view that the Nigerian society is not yet ripe for surrogacy, until there is a legislation, acts of surrogacy are unknown to law and thus illegal

This renders any third party agreement, unenforceable as it is illegal and puts the surrogates'

at a huge loss and risk , that's why the hospitals identify as fertility centers and not surrogate clinics or sperm banks. Engaging in commercial surrogacy in this jurisdiction can also put you at a risk of standing trial for human trafficking.

There are still questions unanswered globally such as 

A. What happens in a situation where the surrogate, is fertilized with one egg to have one child but then ends up with a set of twins, triplets or more..... How will the ownership of the children be decided bearing in mind the history of legal assumption I mentioned earlier.

B. Where the surrogates' dies, what happens.

C. Where the surrogate is unable to have the child as a result of a health risk within the period of pregnancy, if the child is terminated looking at the common law principles of contract, will the surrogate be liable for a breach of contract and subsequently damages?

These are lacuna's visible in jurisdictions where it is practiced how much more here where there is no legislation at all.

D. Do you think our society's moralty against law on a balance of probability will allow for surrogacy? Your guess is as good as mine.

I will love to hear your opinion, for more information or private questions that you don't want to share on the blog, feel free to email Lord Jade, through lawgeeklegal@gmail.com or Whatsapp 07089332053.

statistics references of countries were sourced from Wikipedia.