by Omowunmi Oladokun
Surrogacy is a form of Assisted Reproductive Technology. It is a situation where a woman carries and gives birth to a child on behalf of another person or couple, who later become the child’s legal parents after birth.
Surrogacy is majorly practiced among couples or celebrities who are unable to conceive due to infertility or Celebrities who are trying to preserve there curves and shapes and avoid the body transformation that comes from conception (pregnancy).
Surrogates are usually heavily paid by couples or celebrities and they are denied custody of such children. The couples become the legal and recognised parents of the baby. Parties to a Surrogate agreement usually enter a binding agreement to avoid them from changing voices when the baby is finally birthed.
Surrogacy is not generally unacceptable in Nigeria and It is not illegal because there are no federal legislation regulating it.
The question at this point is: Should Surrogacy be legalized in Nigeria bearing in mind, the controversy that comes with it?
There is a local proverb that states that “He that owns the womb that carried the baby, owns the baby” It is an old traditional principle which is against Surrogacy in the modern world.
In some developed countries, The Parent of a Child is usually determined by contracts and genetic relationships, not simply by who carries the pregnancy.
In the UK case of re Baby M (1988).
One William Stern and Mary Beth Whitehead entered into a surrogacy contract where Whitehead agreed to be artificially inseminated with Stern’s sperm, carry the baby, and give the baby her parental right to Stern and his wife for a fee of $10,000. After giving birth, Whitehead refused to part with the baby (Baby M) and fled the state.
The court declared such contract null and void and state that the baby belong to the surrogate mother.
In another case, where the egg and sperm belongs to the couple and a Surrogate Mother’s womb was just rented for delivery. Could it be said that the child belongs to the Couple.
That was the case in Johnson v. Calvert, 851 P.2d 776 (Cal. 1993): A couple (the Calverts) provided the egg and sperm, and Mark Calvert carried the child. A dispute arose, and the surrogate threatened to keep the baby. The Supreme Court of California ruled that the intended parents were the child’s natural and legal parents.
In K.K. and Others v. Denmark (2022):
The Court examined Denmark’s refusal to recognize a commercial surrogacy arrangement. The court argued that commercial surrogacy closely resembles child trafficking and that such contracts violating human dignity and morality should be declared null and void.
In conclusion, wouldn’t we rather say that Surrogacy is against morality and it is against natural law notwithstanding binding contract. It is subjecting women to slavery in the form or similar to Child trafficking and we must frown at it no matter the consideration exchanged.
