By Lawpadi,
Around the world, surrogacy has become a trusted path to parenthood for many—from celebrities like Kim Kardashian and Gabrielle Union, to everyday couples struggling with infertility. In some cases, surrogacy offers the only chance to start or grow a family when medical challenges, age, or other personal circumstances make pregnancy impossible.
But in Nigeria, the practice is still largely unregulated and widely misunderstood.
Now, the Nigerian government is taking steps to change this. In May 2025, the House of Representatives passed the first reading of a bill that seeks to criminalise commercial surrogacy—the kind of arrangement where a woman is paid beyond medical expenses to carry a child. If the bill becomes law, only altruistic surrogacy—where the surrogate is reimbursed for costs but is not paid—will be permitted.
This marks the first serious legislative step to regulate a practice that has quietly grown in Nigeria's unregulated reproductive health sector. The question is: Will this ban help or harm?
Current State:
At the moment: Surrogacy is not illegal, but there is no law regulating it.
Contracts between surrogates and intended parents are based on informal agreements.
There is no legal guarantee that intended parents will be recognised as the child's legal parents. This legal vacuum creates confusion and potential exploitation, and has led to:
Baby factories: where women are exploited to produce children for sale.
Online brokers: offering surrogacy arrangements with no medical or legal oversight.
Health risks: for surrogates without proper antenatal care or post-delivery protection.
Legal limbo: where children may not be legally recognised as belonging to the intended parents.
What Does the Proposed Law Say?
If passed, Commercial surrogacy will be a crime.
Only altruistic surrogacy - where the surrogate is reimbursed for medical and pregnancy-related expenses, will be allowed.
Agencies and individuals profiting from surrogacy will face prosecution.
However, even with this new law, there are still some key legal gaps. For instance, Nigeria still lacks:
A parental order system: which would automatically transfer legal parentage to the intended parents.
Clear rules about the surrogate's rights (e.g., what happens if she changes her mind?).
Child protection mechanisms specific to surrogacy-born children.
Oversight agencies to regulate surrogacy clinics and brokers.
Lawpàdí Perspective:
The proposed bill makes an important step towards protecting vulnerable women from exploitation in Nigeria's growing but unregulated surrogacy market. By criminalising commercial surrogacy, the bill directly targets baby factories, black-market brokers, and unscrupulous clinics that have historically profited from the desperation of childless couples and the poverty of women willing to carry pregnancies for financial compensation. It sends a clear message that baby-selling under the guise of surrogacy will not be tolerated.
However, while the bill gets this protective intention right, it leaves significant gaps that could create unintended harm. By focusing solely on banning commercial surrogacy, the legislation fails to offer a comprehensive regulatory framework that addresses the real complexities of surrogacy arrangements.
Nigeria still lacks clear laws on parentage:
Who is the legal parent of a child born through surrogacy?
How are disputes between surrogates and intended parents resolved?
Without answers to these questions, surrogacy in Nigeria—even altruistic surrogacy—remains legally fragile.
There is also a very real risk that an outright ban on commercial surrogacy will simply push the practice underground. Instead of eliminating the demand, the ban may drive intended parents to seek unregulated surrogacy services, exposing both the surrogate mother and the child to even greater danger.
Nigeria could borrow a leaf from South Africa's book. South Africa permits both altruistic and gestational surrogacy, but strictly regulates the entire process under the Children's Act, 2005 (as amended). Some key features:
Court Approval Before Pregnancy: Surrogacy agreements must be approved by a High Court before any medical procedures can begin. The court ensures the arrangement is fair, that the intended parents meet strict eligibility criteria, and that the surrogate has given fully informed consent.
No Commercial Surrogacy: South Africa prohibits commercial surrogacy. The surrogate can only be reimbursed for reasonable expenses related to the pregnancy.
Automatic Legal Parentage: Once approved, the intended parents become the child's legal parents from birth. This removes the need for adoption or parental orders after delivery.
Psychological Assessments: All parties (intended parents and surrogate) must undergo mandatory psychological evaluations to confirm emotional readiness and prevent coercion.
Medical Screening: Both the surrogate and the intended parents must pass medical suitability assessments.
The effort to criminalise commercial surrogacy in Nigeria is a well-intentioned attempt to protect women and children from exploitation. However, experience from other countries like South Africa shows that simply banning payment is not enough.
When surrogacy is pushed underground, the risks often multiply: women face unsafe conditions, intended parents lose legal certainty, and children are left in vulnerable legal positions.
South Africa's regulated approach demonstrates that surrogacy can be safe, ethical, and legally sound if supported by clear laws. Their system protects surrogate mothers through pre-approval court processes, guarantees parentage from birth for intended parents, and ensures that all parties are psychologically and medically prepared.
Nigeria has an opportunity to learn from this. Rather than stopping at prohibition, we can build a system that recognises the realities of modern families while upholding the rights and dignity of everyone involved.
Best regards,
Tunde for the Lawpadi Team
Disclaimer: This newsletter is for educational purposes only and does not constitute legal advice. For specific legal issues, consult with a qualified lawyer.
Good Law, Bad Law.
Section 2 of the proposed bill criminalises all forms of payment for surrogacy beyond medical expenses.
