From Contract to Court Order: A Follow-Up Guide to Surrogacy in Nigeria

By P.L. Osakwe

● Introduction

Big idea: In Nigeria, the safest surrogacy path is altruistic, documented, and court-regularised. This follow-up turns principles into a practical roadmap, what to sign, what to file, who to involve, and how to avoid criminal or welfare pitfalls.

Part I — A 90-Day Roadmap Around Birth

T-90 to T-30 (Third Trimester)

1. Finalise the altruistic surrogacy agreement with independent legal advice certificates.
2. Open escrow for receipted, reasonable expenses only.
3. Obtain pre-birth counselling reports (medical + psychosocial) for both sides.
4. Draft hospital birth plan: delivery facility, neonatal contingencies, handover protocol, who can consent in emergencies.
5. Prepare court pack skeleton (see Part II).

■ Birth Week (T-0)

1. Hospital registers birth mother as mother of record (current practice).
2. Implement handover protocol (physical custody to intending parents once clinically safe).
3. Obtain medical discharge summaries for both mother and baby.

■ T+7 to T+21

1. File for interim custody/guardianship (to stabilise placement) and commence adoption where applicable.
2. Lodge DNA report (if relevant), surrogate’s written consent, and escrow accounting to evidence altruism.

■ T+30 to T+90

1. Attend welfare interviews; complete home study and background checks.
2. Seek final orders: adoption (gold standard) or long-term guardianship with parental responsibility directions where adoption is not immediately available.

■ Part II — Your Court Pack (What to File)

Core Applications

1. Originating Motion/Summons for adoption (or guardianship + directions). (Which ever is applicable)
2. Interim Motion for custody pending final determination.
3. Exhibits & Evidence
4. Executed surrogacy agreement (altruistic framework, no baby-selling).
5. Independent legal advice certificates (surrogate and intending parents).
6. DNA report (if a genetic link exists).
7. Consent to adoption signed by surrogate (and spouse, if married).

8. Escrow statement with receipts (medical, transport, maternity items).
9. Hospital letters: delivery record, discharge summaries, immunisation card.
10. Counselling reports and clinic protocols (informed consent trail).
11. Affidavits: surrogate; intending parents; social worker.
12. Child’s welfare statement emphasising stability, caregiving plan, and support network.

□ Orders to Request

1. Interim custody/guardianship to intending parents.
2. Direction to vital records/registry upon final order (to correct parentage as permitted).
3. Confidentiality/anonymisation orders (protecting identities and the child’s future privacy).
4. Leave to travel (if needed) only after court regularisation.

Part III — Model Clauses You Can Reuse (Altruistic Template)

Use these as drafting prompts; tailor to your facts and local court rules.

1) Welfare Supremacy

“The Parties acknowledge that the best interests of the Child are paramount and override any term of this Agreement. Each Party shall cooperate with any Court-directed welfare inquiries, home studies, or interviews.”

2) Expenses & Escrow (No Profit)

“Payments to the Surrogate shall be limited to reasonable, receipted pregnancy-related expenses (medical bills, transportation, prescribed supplements, medically-advised maternity clothing, and reasonable time-off stipends). All payments shall be routed via a neutral escrow; cash handovers are prohibited.”

Medical Protocols & Informed Consent

“The Parties shall follow the treating clinic’s protocols on embryo transfer, prenatal testing, and delivery planning. The Surrogate retains bodily autonomy over medical decisions in consultation with clinicians; the Parties shall respect medical judgment in emergencies.”

4) Post-Birth Handover & Court Regularisation

“Upon medical clearance, the Surrogate will facilitate physical custody to the Intending Parent(s). Within 21 days of birth, the Parties shall file for interim custody and adoption (or guardianship) in the designated High Court.”

5) Consent to Adoption

“Subject to the Court’s welfare mandate, the Surrogate (and spouse, if any) states an intention to consent to the Child’s adoption by the Intending Parent(s) and to attend Court as required. The Surrogate acknowledges the right to withdraw consent before final orders, without prejudice to the Court’s welfare determination.”

6) No Baby-Selling / Compliance

“Nothing in this Agreement constitutes the sale, purchase, or trafficking of a child. The Parties shall comply with all child-protection, anti-trafficking, and adoption laws.”

7) Dispute-Cooling & Jurisdiction

“Disputes shall first proceed to good-faith mediation within 7 days. This clause does not oust the jurisdiction of the Family/High Court. Governing law: Laws of [State], Nigeria; Forum: [State] High Court.”

■ Part IV — Hospital & Clinic Playbook

1. Single Point of Contact: Assign one lawyer/medical liaison for consent forms and discharge decisions.
2. Name on Wristband: Final Parentage: Staff should understand that initial records reflect the birth mother; court orders will regularise later.
3. Emergency Decisions: Pre-agree who can authorise neonatal procedures if the surrogate is sedated or unavailable.
4. Paper Trail: Scan and store all consents, scans, and bills; keep a running expense ledger.

■ Part V — Risk Map & How to De-Risk

1) Commercialisation Risk

a) . Red flag: “Success fee” or flat “compensation” for the child.
b). Fix: Expenses-only; escrow; receipts; independent audits.
2) Spousal Veto

a) Red flag: Married surrogate without written spousal consent.
b) Fix: Obtain spousal consent early; include spouse in counselling.

3) Change of Heart

a) Red flag: No plan for withdrawal or counselling.
b) Fix: Build a cooling-off period post-birth; prepare interim custody application.

4) Cross-Border Moves

a) Red flag: Plans to travel with the infant before orders.
b) Fix: Secure interim orders first; align with immigration/passport rules.

5) Publicity & Privacy

a) Red flag: Social media posts naming the surrogate or child.
b) Fix: Tight confidentiality clauses; seek court anonymisation.

Part VI — Litigation Scenarios (Scripts You Can Run)

A. Surrogate Retains the Child Post-Birth

i) File urgent interim custody citing bonding plan, home readiness, DNA (if applicable), and welfare factors (continuity of care).
ii) Seek supervised contact for the other side until final hearing.
iii) Offer mediation concurrently; courts appreciate de-escalation.

B. Intending Parents Repudiate

i) Secure the child’s immediate care plan with the State’s child-protection team.
ii) Claim restitution of escrowed expenses; preserve evidence of repudiation.
iii) Court may direct alternative adoptive placement prioritising welfare.

C. Allegation of Illegality

i) Exhibit escrow ledger + receipts; highlight expenses-only structure.
ii) Put clinic counsellor and social worker on affidavit to show safeguards.
iii) Request confidentiality orders to protect identities while court investigates.

Part VII — Policy Blueprint (What Reform Should Say).

1) Licence & Supervise ART Clinics

a) Minimum ethics standards; mandatory counselling; record-keeping.

2) Altruistic Surrogacy Only

a) Cap on reimbursable expenses; escrow requirement; independent audits.

3) Parental Orders

a) Post-birth parental order mechanism (on welfare review) to transfer legal parentage without full adoption where a genetic/intention framework exists.

4) Child’s Right to Origin Information

a) Confidential registry permitting the child, at a suitable age, to access non-identifying (and later, with consent, identifying) origin data.

5) Criminal Guardrails

a) Clear distinction between lawful expenses and prohibited consideration to avoid trafficking.

Part VIII — Templates (Quick Starts)

A. Heads of Terms (One-Page)

Parties & counsel details

Altruistic expense list + escrow reference

Medical protocol acknowledgment

Post-birth handover + 21-day filing commitment

Consent to adoption (intention)

Welfare supremacy & confidentiality

Jurisdiction/Forum

B. Short-Form Consent to Adoption (Surrogate)

“I, [Name], of [Address], being the birth mother of [Baby/DoB], state my intention to consent to the adoption of the Child by [Intending Parent(s)], subject to the Court’s welfare assessment. I have received independent legal advice and counselling, understand I may withdraw consent before final orders, and will attend Court as required.”

C. Escrow Cover Letter (to Bank/Trustee)

a) Mandate to release against receipts only
b) Prohibited items (no ‘success fees’, gifts, or cash withdrawals)
c) Monthly statement to both counsel
d) Suspension trigger on dispute notice

■ Myth-Busting (Quick Answers)

DNA guarantees custody.” No, helpful, not decisive. Welfare rules.

"Our contract makes her hand over the baby.” Contracts cannot command a child; courts decide.

“Paying a lump sum is normal.” Not here. Stick to receipted expenses.

“We can travel tomorrow.” Not without orders, risk of abduction allegations.

■ Take-Home Checklist

1. Independent lawyers on both sides
2. Counselling certificates (clinic + psychosocial)
3. Altruistic contract + escrow only
4. Hospital plan + emergency consent logic
5. Court pack pre-built before birth
6. File within 21 days for interim orders + adoption
7. Tight confidentiality; zero social media.