A comparative human rights approach to surrogacy arrangements : a study of India, South Africa and Nigeria

Abstract

Surrogacy is an assisted reproductive technology method that enables a woman to carry the pregnancy of commissioning parent(s) to term and hand over the child after birth. This thesis examines the practice regulation of surrogacy in India, South Africa and Nigeria. The research investigates the human rights issues associated with surrogacy practice in the three jurisdictions studied. The aim of the research is to identify the human rights challenges of surrogacy in India, South Africa and Nigeria and use the findings to formulate a regulatory framework for surrogacy in Nigeria. The functional comparative method is adopted in this research to evaluate primary, secondary and tertiary sources relevant to surrogacy practice in the three jurisdictions. It is found that after years of commercial surrogacy practice in India, legislation to regulate surrogacy in India was finally enacted in 2021 prohibiting commercial surrogacy and international surrogacy. The Surrogacy Regulation Act (SRA) of India adopts a needs-based approach and fails to effectively protect the human rights of surrogate mothers. Similarly, surrogate motherhood arrangements are regulated in South Africa by chapter 19 of the Children’s Act as well as judicial pronouncements which advance the rights of the parties to such agreements. However, the genetic requirement and international surrogacy continue to be subjects of debate in South Africa. While commercial surrogacy is becoming popular in Nigeria with both domestic and international commissioning parents patronising the industry, surrogate motherhood arrangements are unregulated in Nigeria. All past efforts to regulate surrogacy in Nigeria have proved abortive. Human rights issues such as trafficking, the best interests of the child and reproductive autonomy, among others, are identified and discussed. The thesis makes recommendations on surrogacy practice in India and South Africa and proposes a regulatory framework for surrogacy in Nigeria. Implications for future research in surrogacy are identified.