Surrogacy as an option for couples experiencing difficulties with childbearing

Intending parents who experience difficulties with childbearing are often confronted with a bewildering range of treatment options.

In cases where one or both partners have conditions that make it impossible for them to conceive or carry a pregnancy to term, surrogacy may offer the only viable path to parenthood.

Surrogacy is the practice where a woman carries and gives birth to a child for another person or couple. There are generally considered to be three main types of surrogacies: traditional, gestational, and altruistic.

In traditional surrogacy, the surrogate mother is the biological mother of the child, as she is inseminated with the intended father’s sperm. The surrogate’s own egg is used, so she is genetically related to the child.

With gestational surrogacy, the surrogate mother carries a pregnancy with an embryo that is genetically unrelated to her. The embryo is created using the egg and sperm of the intended parents or donor gametes. The surrogate has no genetic link to the child.

Altruistic surrogacy refers to surrogacy arrangements where the surrogate mother does not receive any financial compensation beyond reasonable expenses. In these cases, the surrogate acts out of goodwill and a desire to help the intended parents.

There can also be variations and combinations of these main types of surrogacy arrangements.

The key characteristic of surrogacy is that a woman (the surrogate mother) agrees to become pregnant and carry a pregnancy to term on behalf of another individual or couple.

The surrogate mother may be genetically related to the child if her own egg is used, or she may carry an embryo created with the egg and sperm of the intended parents or donors. After giving birth, the surrogate mother relinquishes all parental rights and responsibilities to the intended parent(s), who become the legal parents of the child. Surrogacy arrangements can be commercial, where the surrogate mother is paid a fee, or altruistic, where no money is exchanged.

In some key circumstances surrogacy can be a viable family-building option for infertile couples.

If the woman is unable to carry a pregnancy to term due to a medical condition, such as a malformed or non-functional uterus, surrogacy may be an option. Couples who have experienced multiple miscarriages or are unable to sustain a pregnancy for medical reasons may turn to surrogacy.

If one or both partners carry a genetic condition they do not want to pass on to a child, surrogacy with donor eggs/sperm can allow them to have a child that is not genetically related to them. In addition, as women get older, their egg quality declines. Surrogacy allows older women to have children using donor eggs.

Surrogacy is a complex and evolving legal and ethical issue, with laws varying greatly between different countries and jurisdictions.

The legal position on surrogacy in the USA varies from state to state, as there is no federal law governing surrogacy. Some states have laws allowing and regulating surrogacy (e.g., California, Connecticut, Delaware, Maine, Nevada, New Hampshire, New Jersey, New York, Rhode Island, Washington) while others have laws prohibiting or restricting surrogacy (e.g., Arizona, Michigan, Nebraska, North Dakota). Louisiana prohibits surrogacy, with criminal penalties.

The enforceability of surrogacy contracts varies by state. Some states enforce contracts, while others do not. Intending parents may need to adopt the child or obtain a court order to establish parenthood. Surrogate compensation is allowed in some states but prohibited or restricted in others.

The American Society for Reproductive Medicine (ASRM) provides ethical guidelines for surrogacy, including screening, informed consent, and disclosure.

In the UK, surrogacy is legal but is heavily regulated. The Surrogacy Arrangements Act 1985 makes it illegal to pay a surrogate more than reasonable expenses, advertise for or as a surrogate, or act as an intermediary without a license.

The Human Fertilisation and Embryology Act 1990 allows surrogacy, but only for couples. It requires the surrogate’s consent, the intended parents’ consent, and a written surrogacy agreement which, however, is not legally binding. The intended parents can apply for a Parental Order to become the legal parents within 6 months of the child’s birth.

Both surrogacy agencies and clinics providing surrogacy services must be licensed by the Human Fertilisation and Embryology Authority (HFEA).

In South Africa, the Surrogacy Act regulates surrogacy, allowing altruistic surrogacy and setting strict guidelines while in Uganda the Surrogacy Bill restricts surrogacy to Ugandan citizens and permanent residents, with a focus on altruistic arrangements.

Kenya allows both commercial and altruistic surrogacy, although there are no comprehensive laws governing the practice. In 2015, the Kenyan Parliament passed the “Assisted Reproductive Technology Bill,” which includes provisions about surrogacy, but the implementation of this law has seen delays.

While commercial surrogacy in Ghana is not explicitly regulated by law, the practice is not widely accepted. Traditional surrogacy, where the surrogate may be compensated only for expenses, faces less scrutiny but still lacks clear legal guidelines.
Many other countries, like Nigeria, Ethiopia, Democratic Republic of Congo, and Mali, have no specific laws governing surrogacy, creating a legal grey area.

In Nigeria, surrogacy is not expressly prohibited by law. Some IVF clinics practice gestational surrogacy based on the Association of Fertility and Reproductive Health (AFRH) practice guidelines which mandates that IVF clinics ensure that commissioning parents are informed that no laws currently regulate the practice of surrogacy in Nigeria and that surrogacy contracts cannot be enforced.

Potential surrogates must be of legal age with at least two prior successful live births with no obstetrics complications.

In addition, it is essential to obtain valid consent from all the affected parties [commissioning parent(s), surrogate, and surrogate’s husband, if married]. Commissioning parents should ensure that any agreements with surrogates are well-documented and seek legal counsel to navigate the legal landscape, which will involve issues of parental rights and the surrogate’s rights.

Surrogacy is viewed as unconventional and often comes into conflict with traditional values and beliefs. Concerns about exploitation of vulnerable women, particularly in poverty-stricken areas, are prevalent. Some argue that surrogacy violates human rights, particularly the rights of the child and the surrogate mother and access to healthcare and medical support for surrogate mothers and children may be inadequate.

The African Charter on Human and Peoples’ Rights, while not specifically addressing surrogacy, emphasizes human dignity, autonomy, and protection from exploitation, while the Maputo Protocol on women’s rights in Africa encourages states to protect women’s reproductive rights, but does not explicitly address surrogacy.

Bridge Clinic offers gestational surrogacy and was the first IVF clinic in Nigeria to have a conception and birth through surrogacy. Because there are no regulations governing surrogacy in Nigeria, Bridge Clinic has always aligned itself with the UK’s HFEA standards in this area to ensure that the welfare of the intended parents and the welfare of the unborn child are duly considered, as well as the welfare of the surrogate (gestational carrier) herself.

Our trained counsellors play a critical part in the process to ensure that both the intended parents and the surrogate have clarity on the emotional, psychological and mental aspects of surrogacy. Memorandums of Understanding and Consent are signed by all parties and ethical approval is required for surrogacy cases. Bridge Clinic encourages the intended parents and the surrogate to be known to each other and works with trusted surrogacy agencies to help our intended parents find a suitable surrogate who fits the criteria.

The decision to pursue surrogacy should involve careful consideration of the medical, legal, ethical and financial implications. Intending parents also need to work with a reputable surrogacy agency and comply with all relevant laws in their jurisdiction. Counselling is recommended to help navigate this complex process.

Tambari Femi-Oluwole is the Head of Clinic, Bridge Clinic, Port Harcourt.