Surrogacy Contracts and Their Enforcement in Nigerian Courts

By P.L. Osakwe

● Overview

Surrogacy is no longer a distant, foreign idea, Nigerian families are quietly turning to it when infertility, medical risk, or single parenthood makes traditional conception difficult. Yet the law has not caught up. Nigeria has no dedicated federal legislation regulating surrogacy, and there is no clear line of appellate authority on when (or how) a surrogacy agreement will be enforced. This creates a practical gap: clinics offer assisted reproduction; families sign private agreements; hospitals must register a birth; and courts are approached, often urgently, when intentions and biology collide.

This article explains the current legal landscape, what a surrogacy contract can (and cannot) achieve under Nigerian law, the likely remedies in court, and the safest path to secure parentage and custody, without risking criminal exposure or a child’s welfare.

The Legal Landscape: What Exists—and What Doesn’t.

1. No specific surrogacy statute. There is no national law expressly recognising or outlawing surrogacy. Any enforceability therefore rests on general contract law, child protection statutes, adoption law, and public policy.

2. Child welfare is paramount. Under the Child’s Rights Act 2003 (CRA) (adopted at federal level and domesticated in many states as Child Rights Laws), the best interests of the child are the primary consideration in any decision affecting a child (CRA s.1). This principle dominates any court’s approach to surrogacy disputes.

3. Birth registration reality. In practice, the woman who gives birth is recorded at first instance as the mother for purposes of birth registration. Nigerian law does not currently provide an automatic “parental order” (as in some other jurisdictions) that transfers parentage from the surrogate to the intending parent(s) at birth.

4. Adoption remains the secure route. Where the intending parent(s) are not the gestational mother, Nigerian practice commonly relies on adoption procedures under the CRA/Child Rights Laws to regularise legal parentage, especially where DNA links are absent or where a clinic requires legal certainty for discharge and documentation.

5. Criminal law guardrails. Nigeria’s Trafficking in Persons (Prohibition) Enforcement and Administration Act 2015 criminalises the sale or purchase of babies. This casts a long shadow over commercial surrogacy arrangements and any payment structure that looks like “buying” a child rather than compensating reasonable pregnancy-related expenses. Careless drafting can turn a private family plan into prosecutable conduct.

Are Surrogacy Agreements Enforceable?

1) Validity in Principle (Contract Law)

A surrogacy contract is a private agreement. In theory, it may be valid if it contains the elements of a contract (offer, acceptance, consideration, intention to create legal relations, capacity, certainty). However, three brakes apply:

□ Public Policy: Clauses that compel surrender of a child irrespective of welfare, or that fix a price for a child, risk being void as contrary to public policy (and may raise trafficking concerns).

□ Illegality: Any agreement that circumvents adoption laws or birth registration rules, or disguises baby-selling, is unenforceable.

□ Best Interests Override: Even where a contract is prima facie valid, the court must give primacy to the child’s welfare. A judge is free to depart from contractual terms if doing so protects the child.

□ Bottom line: Nigerian courts are unlikely to treat a surrogacy contract like a simple services agreement. Specific performance (forcing a surrogate to hand over a baby) is improbable. Damages for clear breaches (e.g., return of medical/escrowed costs) are more realistic, subject always to welfare and public policy.

2) Altruistic vs. Commercial

Altruistic arrangements (without profit, limited to reasonable expenses) are more defensible in court.

Commercial arrangements (profit-making or fee-based beyond genuine expenses) are far more vulnerable to public policy and criminal-law challenges.

■ The Courtroom Reality: What Relief Can You Expect?

Custody/Guardianship Orders: If the surrogate and intending parents disagree, a court will consider who should have custody based on the child’s best interests (stability, bonding, capacity to provide care, health considerations, etc.). Genetic links matter but are not decisive.

Adoption Orders: Where appropriate (especially where the intending mother did not carry the child), adoption is the gold-standard mechanism to confer parentage and extinguish third-party claims, provided statutory requirements (consents, social welfare reports, home studies) are met.

Declarations/Directions: Courts may grant declaratory relief about parentage (supported by DNA evidence) and make directions to hospitals or registries regarding documentation, though parentage on paper usually still requires adoption when the birth mother is not to remain the legal mother.

Damages/Restitution: If a surrogate breaches a clear, lawful clause (e.g., misrepresentations, refusal to attend agreed medical appointments, or misuse of funds), courts may award damages or restitution of expenses. Conversely, intending parents who breach (e.g., refusal to pay reasonable expenses after embryo transfer) may be held liable.

Injunctions? Rare. Pre-birth or post-birth injunctions to “force delivery of a child” are unlikely. Courts might grant interim custodial orders to maintain stability pending a full welfare hearing, but the child’s welfare, not contract language, drives outcomes.

■ Drafting Surrogacy Agreements that Survive Scrutiny

This checklist reduces risk; it does not guarantee enforcement.

1. Altruistic Structure: Limit payments to reasonable, receipted expenses (medical, transport, maternity clothing, time off work at statutorily reasonable levels). Avoid “success fees.”

2. Independent Legal Advice: Each party (surrogate, intending parent(s), and, where applicable, the surrogate’s spouse/partner) should have separate counsel. Obtain written certificates of independent advice.

3. Informed Medical Consent: Embed clinic protocols, counseling notes, and written consents (IVF/embryo transfer, prenatal testing, selective reduction policies, delivery plans).

4. Parentage & Post-Birth Plan: Spell out intended parentage and a post-birth pathway: immediate physical custody to intending parents (subject to medical discharge), followed by application for adoption/custody within a defined timeline.

5. Consent to Adoption: Include a clear consent to adoption by the surrogate (and her spouse, if married), acknowledging she understands the legal effects and that consent may be withdrawn before final order—as the law may require.

6. Welfare First Clause: State expressly that the child’s best interests override all terms, and parties agree to facilitate court processes (home studies, interviews).

7. Escrow & Payments: Use a neutral escrow for permitted expenses, with release milestones tied to documented costs. Prohibit cash handovers.

8. Confidentiality & Data: Protect medical privacy, clinic data, and the child’s future privacy (including limits on social media posts). Provide for future disclosure to the child when appropriate.

9. Insurance & Risk: Clarify who pays for complications of pregnancy, NICU care, and life/disability cover.

10. Dispute Resolution: Provide for good-faith mediation before litigation, but never oust the jurisdiction of the Family Court/High Court on child matters.

11. Jurisdiction & Governing Law: Choose the state High Court with a nexus (residence, clinic location) and specify Nigerian law, while acknowledging the CRA’s welfare primacy.

12. Spousal Consent: If the surrogate is married, obtain spousal consent in writing to prevent future disputes.

13. Citizenship & Travel: If the intending parents are foreign or dual nationals, plan immigration steps (passports, visas) after court orders. Avoid cross-border removal without orders.

♤ Practical Pathway for Intending Parents

1. Pre-conception

Choose reputable ART clinics with clear ethics protocols.
Execute a well-drafted altruistic surrogacy agreement with independent legal advice and escrow arrangements.

2. Pregnancy

Keep meticulous records of expenses and medical reports.
Maintain a co-operative relationship with the surrogate; avoid coercion or public pressure.

3. At Birth

Follow the hospital’s discharge protocol. Expect the surrogate to be recorded initially as the mother.
Transition physical custody pursuant to the agreement, peacefully and with the hospital’s documentation.

4. Court Regularisation (Urgent)

1. File for adoption (or, where appropriate, custody/guardianship with a plan to adopt), attaching the agreement, DNA evidence (if available), social welfare reports, and the surrogate’s consents.
2. Seek interim custody orders to secure the child’s stability pending final determination.

■ Litigation Playbook (When Things Go Wrong)

♤ If the surrogate refuses to hand over the child:
Move swiftly for interim custody on welfare grounds; present evidence of the intended parenting plan, home readiness, and any genetic link. Do not rely solely on contract language.

♤ If intending parents back out:
Seek restitution of expenses and, where appropriate, damages for breach, while ensuring the child’s care is secured (the court may prioritise placing the child through adoption procedures).

♤ If criminal risk is alleged:
Obtain immediate criminal-law advice. Demonstrate that payments were limited to reasonable expenses, documented via escrow, and that all steps honoured child-protection laws.

■ Ethical and Policy Considerations

1. Autonomy vs. Exploitation: Surrogacy empowers families but risks exploitation of economically vulnerable women. Altruistic frameworks with strict oversight are ethically safer.

2. Transparency for the Child: Many jurisdictions support a child’s right, at an appropriate age, to know their origins. Nigerian practice should evolve toward child-centred disclosure.

3. Regulatory Reform: Nigeria would benefit from a clear statutory framework: licensing ART clinics, mandating counselling, capping expenses, recognising parental orders (post-birth judicial transfer of parentage), and criminalising baby-selling without chilling legitimate altruistic surrogacy.

■ Frequently Asked Questions

1) Can we avoid adoption if there is a genetic link?
Not safely, under current practice. Adoption (or a bespoke court order regularising parentage) remains the most secure route.

2) Can a court force a surrogate to release the baby because she signed a contract?
Courts are unlikely to grant specific performance. They will decide custody by best interests. The contract is evidence of intention, not a command over a child.

3) Is paying a surrogate illegal?
Paying beyond reasonable, documented expenses risks violating public policy and may raise trafficking concerns. Keep arrangements altruistic and carefully documented.

4) What if the surrogate changes her mind?
The law protects her right to change her mind until a court finalises parentage. Courts will then weigh all factors, primarily the child’s welfare.

■ Actionable Takeaways

1. Treat the surrogacy contract as a framework for conduct, not a guarantee of custody.
2. Keep the arrangement altruistic, documented, and transparent.
3. Plan for adoption (or appropriate court orders) immediately after birth.
4. Use independent lawyers, escrow, and clinic-level ethics.

In disputes, move quickly for interim welfare orders; do not escalate publicly.

■ Suggested Clauses (Mini-Checklist)

1. Expense Schedule: capped, receipted, escrowed.
2. Health & Testing Protocols: clinic-led, with informed consent.
3. Post-Birth Handover Plan: hospital release, immediate custody to intending parents (subject to medical advice), followed by court application within X days.
4. Adoption Consent & Cooperation: surrogate (and spouse) to attend all hearings.
5. Welfare Supremacy: parties acknowledge court’s welfare mandate.
6. Confidentiality & Data Handling: protect identities and medical data.
7. Dispute Resolution: mediation: court (Family/High Court) without delay.

■ Conclusion

Until Nigeria enacts a tailored surrogacy law, contracts alone cannot carry the full weight of parentage and custody. The best interests of the child, the illegality/public policy filter, and adoption procedures are the decisive levers in court. Draft humanely. Document carefully. And always litigate, if you must, with the child’s welfare front and centre.