Legal and Jurisprudential Implications of Assisted Reproductive Technology in Nigeria

THE JURISPRUDENTIAL IMPLICATIONS OF MODERN HUMAN ARTIFICIAL
REPRODUCTIVE TECHNOLOGIES: NIGERIA IN FOCUS.
ABSTRACT
While assisted reproductive technology has given hope to millions of couples suffering from
infertility, it has also introduced countless ethical, legal, and social challenges. Nigeria is one of
the jurisdictions that is yet to legislate on assisted reproductive technology even though her
citizens are undergoing the procedures and there are assisted reproductive technology centres
springing up around the country. Thus, it is unclear what the position of the law is with respect
to identifying the parents of a child born via assisted reproductive technology and this poses a
very serious potential problem in the nearest future. The rapid advancements in this field bring
about complex legal and ethical challenges that necessitate an in-depth examination. The study
aims to analyze the legal frameworks, existing regulations, and judicial attitudes towards
artificial reproductive technologies in Nigeria. It will assess the intersection between
reproductive rights, traditional cultural norms, and religious beliefs, exploring how these factors
shape the legal landscape in Nigeria. The methodology adopted by this work is the doctrinal
method of legal research. The source of data for this work are primary sources of law statutes,
case laws and secondary sources of laws such as internet materials, Law journals, articles and
textbooks of renowned authors. By examining relevant case laws and statutes, this research will
shed light on the extent to which legal systems accommodate or restrict access to artificial
reproductive technologies. Additionally, the study will consider the implications of these
technologies on parentage, custody, inheritance, and the overall concept of family, emphasizing
the need for legal clarity and protection of the rights of all parties involved. The analysis will also
touch upon the potential consequences of inadequate regulation, such as exploitation,
discrimination, or infringement upon human dignity. In the course of research, findings from
literature showed that determination of legal parenthood in collaborative reproduction is barely
a problem in other jurisdictions as many jurisdictions have passed laws regulating the practice
of assisted reproductive technology in their respective countries. Ultimately, the findings of this
research will contribute to the broader understanding of the legal implications surrounding
modern human artificial reproductive technologies in Nigeria, assisting policymakers, jurists,
and advocates in crafting informed and inclusive regulations.
i
TABLE OF CONTENT
Title
Certification
Approval
Dedication
Acknowledgements
Table of Contents
Table of Cases
List of Statutes
List of Abbreviations
Abstract
CHAPTER ONE: INTRODUCTION
1.1 Background to the Study
1.2 Statement of the Problem
1.3 Aim and Objectives of the study
1.4 Research Methodology
1.5 Scope and Limitation of the Study
1.6 Significance of the Study
CHAPTER TWO: LITERATURE REVIEW
2.1 Conceptual Framework
2.1.1 Human Reproduction
2.1.2 Rights
ii
2.1.3 Reproductive Rights
2.1.4 Infertility
2.1.5 Assisted Reproductive Technology
2.2. Theoretical Framework
2.3 Review of Related Literature
2.4 Summary of Literature Review and Definition of Gap in Knowlegde
CHAPTER THREE: LEGAL AND INSTITUTIONAL FRAMEWORK ON REPRODUCTIVE
TECHNOLOGIES IN NIGERIA
3.1 Legal Framework
3.1.1 Constitution of the Federal Republic of Nigeria 1999 (as Amended)
3.1.2 Matrimonial Causes Act
3.1.3 Child‘s Rights Act, 2003
3.1.4 Assisted Reproductive Technology Bill 2016
3.1.5 Lagos State guideline on Assisted Reproductive Technology 2019.
3.2 Institutional Framework
3.2.1. National Assembly
3.2.2 Family
3.2.3 Centre for Reproductive Rights (CRR)
3.2.4 Society for Reproductive and Women's Health (SWRH)
3.2.4 Nigerian Association of Reproductive Health (NARH)
CHAPTER FOUR: THE LEGAL AND JURISPRUDENTIAL EFFECTS OF ASSISTED HUMAN
REPRODUCTIVE TECHNOLOGIES: NIGERIA IN FOCUS.
4.1 Analysis of the Impact of Assisted Reproductive Technologies on Individual
iii
Reproductive Rights and Autonomy
4.2 Exploration of Ethical and Legal Considerations Surrounding Access to Artificial
Reproductive Technologies for Various Socio-Economic Groups in Nigeria
4.3 Parenthood and Parental Rights in the Context of Artificial Reproductive
Technologies in Nigeria
4.4 Assessment of Ethical Concerns Surrounding Artificial Reproductive
Technologies including Issues of Commodification, Exploitation, and Potential Harm to
the Child
4.5 Comparison of Nigeria's legal framework with that of some other countries
regarding Artificial Reproductive Technologies
CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS
5.1
Conclusion
5.2 Recommendations
Bibliography
iv
v
CHAPTER ONE
INTRODUCTION
1.1. Background to the Study
The advent of modern human artificial reproductive technologies (ART) has ushered in
a new era in the realm of human reproduction, presenting profound legal, ethical, and
cultural challenges across the globe. These advancements, including in vitro fertilization
(IVF), surrogacy, and genetic engineering techniques, have not only transformed the
ways in which individuals and couples can conceive and build families but have also
raised a multitude of complex questions that demand rigorous examination. This
research embarks on a journey into the jurisprudential implications of modern human
ART, with a specific focus on Nigeria, a country characterized by its rich cultural
diversity and the interplay of tradition and modernity.
ART encompasses a range of techniques, with varying complexities, designed primarily
to aid couples who are unable to conceive without medical assistance1. These
techniques comprise medical and scientific manipulations of human gametes and
embryos in order to produce a term pregnancy2. Any procedure or method designed to
enhance fertility or “compensate for infertility” outside the traditional means of
procreation (outside the human body) can be labelled ART3. This victory of modern
medicine provides relief for couples who are not only childless, but face increasing
cultural and social barriers to adoption4. Besides giving couples an opportunity to have
1
Adewumi A. The need for assisted reproductive technology law. University of Ibadan Law Journal.
2012;2(1):19–41.
2
Ibid
3
Blank R, Merrick J. Human reproduction emerging technologies. 1st ed. Washington DC: CQ Press;
1995:1–269.
4
Koyonda SO. Assisted reproduction in Nigeria: Placing the law above medical technology. Comp Int Law
J South Afr. 2001 Jul;34(2):258–79.
1
a child that may or may not be genetically connected to them, these technologies also
obviate the need for marriage, intercourse, or even pregnancy to term.
Further, the emotional anguish associated with reproductive inability(ies), exacerbated
by social stigma, may be consigned to reproductive history with these technologies5.
Human ART encompasses a wide range of medical interventions such as in vitro
fertilization (IVF), surrogacy, and genetic modification techniques like CRISPR-Cas9.6
These technologies present both opportunities and challenges that necessitate a
thorough legal and ethical analysis. In Nigeria, where traditional values and religious
beliefs play a crucial role in societal norms, the implications of ART are particularly
complex7. The country currently lacks comprehensive legislation specific to ART,
leading to considerable ambiguity in practice.
To address these issues effectively, there is a need for research that explores the
jurisprudential dimensions of ART in Nigeria. By analyzing the legal and ethical
implications, this research will contribute to the development of informed policy,
guidelines, and recommendations that respect cultural, ethical, and human rights
principles.
1.2 Statement of Problem/Research Questions
The integration of modern Human Artificial Reproductive Technologies (ARTs) into the
socio-legal fabric of Nigeria presents a complex tapestry of challenges, each knot in the
weave representing a unique facet of the jurisprudential puzzle. This study seeks to
untangle these intricacies by articulating the challenges posed by modern ARTs as the
5
Ibid
6
M Hansen et al., Assisted Reproductive Technology and Birth Defects: a Systematic Review and Meta-
analysis [2013] 19(4): Hum Reprod Update. 330-53
7
N Noyes et al., Oocyte Cryopreservation: a Feasible Fertility Preservation Option for Reproductive Age
Cancer Survivors [2010]27(8) J Assist Reprod Genet 495-9
2
fundamental problems, exploring the legal, ethical, and societal conundrums that
demand astute navigation for the harmonious coexistence of technological
advancement and legal principles in the Nigerian context.
The ethical and legal frameworks governing reproductive technologies in Nigeria find
themselves ensnared in a labyrinth of complexities posed by modern ARTs. Unraveling
the intricacies of these frameworks, fraught with potential conflicts and gaps, is
imperative to identify the challenges that impede the seamless integration of innovative
reproductive technologies into existing legal structures.
The collision between modern ARTs and Nigeria's rich tapestry of cultural and religious
beliefs generates tensions that permeate the legal discourse. These tensions, rather
than merely contextual nuances, present themselves as challenges, shaping public
perceptions, ethical considerations, and regulatory paradigms that must be addressed
to carve a path for the acceptance of ARTs within the cultural and religious mosaic of
Nigeria.
Within the labyrinth, a void of accessibility challenges engulfs modern ARTs in Nigeria.
The disparities in access and affordability among diverse socioeconomic strata and
marginalized communities form not only obstacles but also critical problems.
Investigating this abyss is paramount for understanding the societal implications of
unequal access and for formulating policies that bridge the accessibility gap, ensuring
the equitable distribution of reproductive technologies.
The regulatory landscape governing modern ARTs in Nigeria is submerged in a
quagmire of challenges related to oversight, safety standards, and standardization.
Each challenge within this regulatory quagmire represents a potential hurdle to the
3
responsible and safe implementation of ARTs.
The enigma of parental rights and responsibilities in the context of modern ARTs
introduces complexities that go beyond customary legal deliberations. Untangling this
web of rights and responsibilities is essential for crafting legal frameworks that not only
navigate traditional familial structures but also address the novel dynamics introduced
by assisted reproductive technologies.
As technological advancements propel ARTs into the future, a panorama of legal
dilemmas unfolds. Anticipating these challenges becomes pivotal to proactively
shaping legal frameworks capable of adapting to and regulating emerging technologies.
The futuristic legal landscape, far from being a distant concern, becomes an immediate
problem that demands scrutiny and strategic forethought.
This research embarks on a jurisprudential odyssey, framing the challenges posed by
modern Human Artificial Reproductive Technologies in Nigeria as the fundamental
problems to be unravelled. Through this lens, the study endeavors to provide insights
that guide the development of legal and ethical frameworks capable of navigating the
complexities and intricacies of the evolving landscape of reproductive technologies in
Nigeria.
1. What is the current legal framework in Nigeria regarding modern human ART, and
how well does it address the legal and ethical challenges posed by these technologies?
2. How do cultural and religious beliefs influence the perception and use of ART in
Nigeria, and what role do they play in shaping the legal and ethical debates surrounding
ART?
3. What are the specific legal and ethical dilemmas associated with ART in the context
4
of Nigeria, particularly with respect to issues such as parentage, custody, inheritance,
and human dignity?
4. How does the lack of comprehensive ART legislation impact the rights and
protections of individuals, families, and children involved in ART procedures in Nigeria?
5. What are the ethical considerations and cultural norms that intersect with modern
human ART, and how do they impact individual choices and societal acceptance?
6. What potential legal reforms and ethical guidelines could be proposed to better
regulate and govern modern human ART in Nigeria while respecting cultural diversity
and human rights principles?
1.3 Aim and Objectives of the Study

This study aims to analyze the jurisprudential implications of modern human artificial
reproductive technologies within the Nigerian context. The primary objectives of this
research are as follows:
a. To analyze the existing legal framework in Nigeria concerning ART and assess its
adequacy in addressing contemporary challenges and ethical dilemmas.
b. To examine the ethical and cultural implications of ART within Nigerian society and
its impact on individuals, families, and communities.
c. To identify and propose potential legal reforms and ethical guidelines that address
the challenges posed by modern ART in Nigeria.
1.4. Research Methodology
The methodology adopted by this work is the doctrinal method of legal research. The source of
data collection for this work are primary sources of law such as statutes, international treaties
and conventions, case laws and secondary sources of laws such as internet materials, journals
articles and textbooks of renowned authors.
5
1.5 Scope and limitations
The scope of this research borders on the jurisprudential implications of modern human
artificial reproductive technologies in Nigeria. This project is limited by space as
prescribed by the LLB project guidelines.
1.6Significance of the study
This project is very relevant especially in this 21st century when most couples patronize
ART for different reasons, mostly for the treatment of infertility, with resultant
exponential increase in number of ART, therefore bringing up the controversies of moral
and ethical issues to the fore. This study contributes immensely to enriching the reader
on the various techniques of ART, its benefits as well as the drawbacks, providing
scholarly answers to the burning moral and ethical questions related to ART. This
study, also, adeptly provides the justification for regulating ART through legislations
based on natural law.
6
7
CHAPTER TWO
LITERATURE REVIEW
2.1 Conceptual Framework
2.1.1 Sexual Reproduction
Human reproduction is sexual reproduction that results in human fertilization to
produce a human offspring. It typically involves sexual intercourse between a sexually
mature human male and female.1 During sexual intercourse, the interaction between
the male and female reproductive systems results in fertilization of the ovum by
the sperm to form a zygote.2 While normal cells contain 46 chromosomes (23 pairs),
gamete cells only contain 23 single chromosomes, and it is when these two cells merge
into one zygote cell that genetic recombination occurs and the new zygote contains 23
chromosomes from each parent, giving it 46 chromosomes (23 pairs).3 The zygote then
undergoes a defined development process that is known as human embryogenesis, and
this starts the typical 9-month gestation period that is followed by childbirth. The
fertilization of the ovum may be achieved by artificial insemination methods, which do
not involve sexual intercourse.4
In order for human reproduction to be achieved, an individual must have
undergone puberty first, requiring ovulation in females and the spermarche in males to
have occurred prior to engaging in sexual intercourse or achieving pregnancy through
non-penetrative means. Before puberty, humans are infertile, as their genitals lack
reproductive function (only being able to discharge urine).

1
R E Jones, Human Reproductive Biology: The Male Reproductive System (Elsevier, 1991) 72–93.
2
Ibid
3
Science Direct, ‘Gametogenesis – An Overview’. <https://www.sciencedirect.com/topics/medicine-and-
dentistry/gametogenesis> accessed 25th November, 2023
4
W Ombelet and J Van Robays ‘Artificial insemination history: hurdles and milestones’ Facts, Views &
Vision in ObGyn. [2015] 7 (2): 137–143.
8
The male reproductive system contains two main divisions:
the testicles where sperm are produced, and the penis which discharges the sperm
as semen (this is known as an ejaculation). In humans, both of these organs are outside
the abdominal cavity5. Having the testicles outside the abdomen facilitates temperature
regulation of the sperm, which require specific temperatures to survive about 2-3 °C
less than the normal body temperature i.e. 37 °C. In particular, the extraperitoneal
location of the testicles may result in a 2-fold reduction in the heat-induced contribution
to the spontaneous mutation rate in male germinal tissues compared to tissues at
37 °C.6 If the testicles remain too close to the body, it is likely that the increase in
temperature will harm the spermatozoa formation, making conception more difficult.
This is why the testes are carried in an external scrotum rather than within the abdomen;
they normally remain slightly cooler than body temperature, facilitating sperm
production7.
The female reproductive system likewise contains two main divisions: the external
genitalia (the vulva) and the internal genitalia8.
The ovum meets with the sperm cell: a sperm may penetrate and merge with the egg,
fertilizing it with the help of certain hydrolytic enzymes present in the acrosome. The
fertilization usually occurs in the oviducts, but can happen in the uterus itself.9
The zygote then becomes implanted in the lining of the uterus, where it begins the
processes of embryogenesis and morphogenesis. When the fetus is developed enough
to survive outside of the uterus, the cervix dilates and contractions of the uterus propel
5
6
R H Baltz and P M Bingham and J W, ‘Heat Mutagenesis in Bacteriophage T4: The Transition
Pathway’. Proc. Natl. Acad. Sci. USA. [1976] 73 (4): 1269–1273.
7
8
T Weschler, Taking Charge of Your Fertility (Revised ed.. New York: HarperCollins, 2002). 359–361
9
Ibid
9
it through the birth canal, which is the vagina, and thereby gives external life to the
10
newborn infant. This process is called childbirth.
The ova, which are the female sex cells, are much larger than the spermatozoon and are
normally formed within the ovaries of the female fetus before birth. They are mostly
fixed in location within the ovary until their transit to the uterus, and contain nutrients for
the later zygote and embryo.11 Over a regular interval known as the menstrual cycle, in
response to hormonal signals, a process of oogenesis matures one ovum which is
released and sent down the fallopian tube. If not fertilized, this egg is flushed out of the
system through menstruation.12
Legal factors also play a vital role in the achievement of human reproduction:
a minor under the age of consent cannot give legal consent to sexual intercourse or
artificial alternatives to reproduction, the former case of which is liable to have the older
party charged with statutory rape, depending on jurisdictions.13 Even for minors above
the age of consent, comprehensive sex education advises both consenting parties to
use contraception to avoid both sexually transmitted diseases and early,
unplanned/unwanted pregnancies. Pregnancy in girls under the age of 15 is especially
discouraged due to their reproductive systems having yet to reach full maturity.14
2.1.2 Right
It can hardly be contested that no single word has been subjected to misinterpretation
and abuse as the word ‘Right’, in legal theory and philosophy. Most of the classical
10
Ibid
11
Ibid
12
Ibid
13
C M Cusack, Laws Relating to Sex, Pregnancy, and Infancy: Issues in Criminal Justice. (Springer,
2015). 10.
14
S Mayor ‘Pregnancy and Childbirth are Leading Causes of Death in Teenage Girls in Developing
Countries’. BMJ. [2004] 328 (7449): 1152.
10
conceptions of the word have been fundamentally flawed by subsequent theorizing
15
which exposed the inadequacies of the meaning given to this popular expression .
Jurists text writers and researchers have defined the word ‘Right’ in various ways.
According to C.K Allen16 ,right is a legally guaranteed power to realize an interest.
According to Austin17 right exists when another or others are bound or obliged by law
to do or forbear towards or in regard of another. Holland views it as the capacity
residing in one man of controlling, with the assent and assistance of the state the
actions of others18. Finally According to Adaramola19, Legal rights are those rights
conferred on the individual by rules of positive law which are enforceable through
society’s approved institutions of coercion such as court , the police etc.
In Uwaifo v. AG Bendel State20, the Supreme Court held that right is any advantage or
benefit conferred on a person by the rule of law. Thus, every right involves a person who
is invested with it and persons on whom the right imposes a correlative duty. Human
rights are rights we have simply because we exist as human beings.21 This is provided
for in Chapter Four of the constitution. In the same vein, do these rights extend to the
child by virtue of being a human being and secondly, a child with its provision made
under the Child’s Rights Act22 as adopted from the constitution which is meant to
ensure that the child lives, survives, develops and that he or she is protected from abuse
15
I Akomolede, Introduction to Jurisprudence and Legal Theory (Niyak print and Law Publications, Lagos,
2008)
127.
16
C Allen, Law in the Making (7th ed Bolton publishers 1956) 614.
17
J Austin, Lectures on Jurisprudence (5th ed. J.P Publishers 1947) 300.
18
T Holland, The Elements of Jurisprudence (Hart and Spencer publishers, 1880) 83.
19
F Adaramola, Basics of jurisprudence (4th ed. LexisNexis Butterworths Durban publihers 2008), 162.
20
(1982) 7 SC 124
21
OHCHR,‘What are Human Rights’<https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx.>
accessed on 28/11/2023
22
CRA 2003, ss 3-18
11
or neglect.
The Vienna Declaration described human rights as the birth right of all human
beings.23 It further states that all human rights are universal, indivisible, interdependent
and interrelated, as such the international community must treat human rights globally
in a fair and equal manner, on the same footing, and with the same emphasis. While the
significance of national and regional background must be borne in mind, it is the duty of
states, regardless of their political, economic and cultural systems, to promote and
protect all human rights and fundamental freedoms.24
Human rights is also believed to be inherent rights to be enjoyed by all human
beings of the global village and not gifts to be withdrawn, withheld or granted at
someone’s whim or will.25 It is inherent in all persons; big and small, with or without
disabilities. The promotion and protection of human rights is the ultimate priority of the
international community; thus, the need to continuously enhance and promote full
recognition, observance and realization of human rights and fundamental freedoms for
all persons who are the principal beneficiaries and central subjects of human rights and
fundamental freedoms. Human rights are therefore those rights which all persons
across the globe enjoy at all times by virtue if being moral and rational beings.
Apart from definitions from statutes, many scholars and jurists have opined on
the concept of human rights. Cranston defined human rights as something of which no
one may be deprived without a great affront to justice. He further stated that there are
certain deeds, which should never be done, certain freedoms, which should never be
23
Vienna Declaration 1993, Article 1
24
Ibid, Preamble
25
United Nation, ‘The Universal Declaration of Human Rights; A Magna Carta for all Humanity’, United
Nations Department of Public Information, 1998
12
done, certain freedoms that should never be invaded, something that are suppressive
26
sacred. Forsythe on the other hand however emphasized that if one has a human right,
one is entitled to make a fundamental claim that an authority, or some other part of
society, do (or refrain from doing) something that affects significantly one's human
dignity.27
Dowrick, described human rights as those claims made by men, for themselves,
or on behalf of other men, supported by some theory which concentrates on the
humanity of man, on man as a human being, and as a member of humankind.28 He
rejects any attempt to balance individual rights against public interest because he
believes that to do so would weigh the scales almost inevitably in favour of the public
interest.29 This research agrees with the postulation of Dowrick as this means that if a
right is guaranteed under the law, the society must be ready to obey it strictly because,
infringing on those rights will amount to the society disobeying its own laid dawn norms.
In trying to give credence to the inalienability of human rights, Professor Ben Nwabueze
has this to say;
The good life, which is the common aspiration of all of us, is a

product of both the spiritual and material; it can only be
attained by combination of the inner happiness that comes
from freedom of thought, conscience, emotions, speech, and
movement with the material comforts implied by economic
and social rights like food, shelter, health and medical care,
education,, clothing etc.30
From the above, it is clear that human rights accrue to every individual without
discrimination. Human rights differ from other forms of rights because of two
26
M Cranston, Human Rights: Real or Supposed (ed. Bloomington: Indiana University Press, 1967), p45
27
D P Forsythe, The Internationalization of Human Rights, (Massachusetts: Lexington Books, 1991), p1
28
R Dworkin, Taking Rights Seriously ,(Cambridge: Harvard University Press, 1977), p200
29
Ibid
30
B O Nwabueze, ‘The Value of Human Rights and the Challenge for Africa,’ Paper delivered at the Annual
Conference of the Nigerian Bar Association at Abuja, 27th July, 1999, 16.
13
31
distinctive features; they are inherent in all human beings and they are inalienable.
Human rights are increasing and it being presented as the common language and the
ethical substratum of international relations. Human rights are underpinned by a set of
common values that have been prevalent in societies, civilisations and religions
throughout history. These values include fairness, respect, equality, dignity and
autonomy as such, the rights recognised and expounded at law apply to everyone by
virtue of the common origin of the person as a human.
2.1.3 Reproductive Rights
Reproductive rights are legal rights and freedoms relating
to reproduction and reproductive health that vary amongst countries around the
world.32 The World Health Organization defines reproductive rights as follows:33
Reproductive rights rest on the recognition of the basic right of all couples
and individuals to decide freely and responsibly the number, spacing and
timing of their children and to have the information and means to do so,
and the right to attain the highest standard of sexual and reproductive
health. They also include the right of all to make decisions concerning
reproduction free of discrimination, coercion and violence.
Reproductive rights may include some or all of the following: right to abortion; birth
control; freedom from coerced sterilization and contraception; the right to access good-
quality reproductive healthcare; and the right to education and access in order to make
34
free and informed reproductive choices. Reproductive rights may also include the
31
B O Nwabueze, ‘The Value of Human Rights and the Challenge for Africa,’ Paper delivered at the Annual
Conference of the Nigerian Bar Association at Abuja, 27th July, 1999, 16
32
R J Cook, and M F Fathalla, ‘Advancing Reproductive Rights Beyond Cairo and Beijing’ International
Family Planning Perspectives [1996] 22 (3): 115–21.
33
WHO, ‘Gender and reproductive rights’
<https://web.archive.org/web/20090726150133/http://www.who.int//reproductive-
health/gender/index.html> accessed 29th November, 2023
34
Amnesty International USA, ‘Stop Violence Against Women: Reproductive rights’
14
right to receive education about sexually transmitted infections and other aspects of
35
sexuality, right to menstrual health and protection from practices such as female
genital mutilation (FGM).36
There is no universal definition of reproductive health. According to the ICPD,
reproductive health is a state of complete physical, mental and social wellbeing, and not
merely the absence of disease or infirmity, in all matters related to the reproductive
system and to its functions and processes. The concept is centred on human needs and
37
development throughout the entire life cycle, “from the womb to the tomb” . There is
just not one reproductive right but a host of recognised human rights that have positive
implications for the protection of reproductive health38. Reproductive rights consist of a
number of separate human rights that “are already recognized in national laws,
international laws and international human rights documents and other consensus
documents,”39.
Reproductive health implies that people are able to have a satisfying and safe sexual life
and that they have the capability to reproduce and the freedom to decide if, when and
how often to do so. It includes access to voluntary, qualitative and sexual health
information and education and services40. Reproductive rights embrace the rights of
<https://web.archive.org/web/20080120140923/http://www.amnestyusa.org/Stop_Violence_Against_Wo
men_SVAW/Reproductive_Rights/page.do?id=1108242&n1=3&n2=39&n3=1101> accessed 29th
November, 2023
35
S Singh, ‘Inclusion Of Menstrual Health In Sexual And Reproductive Health And Rights: Authors' Reply’
The Lancet Child & Adolescent Health. [2018] 2 (8). 19
36
L P Freedman, and S L Isaacs, ‘Human Rights and Reproductive Choice’ Studies in Family
Planning. [1993] 24 (1): 18–30
37
Federal Ministry of Health (FMOH), National Reproductive Health Policy and Strategy to Achieve Quality
Reproductive and Sexual Health for All Nigerians, (FMOH, 2001).
38
A Atsenuwa, et al., Reproductive Health and Right Education, A Compilation of Resources, (Legal
Research and Resources Development Centre, 2004)
39
Ibid
40
M O Imasogie, ‘Reproductive Rights as Human Rights’. In A. N. Nwazuoke, (Ed.) Essay In Human Right
Law, (pp. 98-123)
15
men and women to be informed and to have access to safe, effective, affordable and
acceptable methods of family planning of their choice as well as other methods of their
choice for regulation of fertility which are not against the law, the right to appropriate
healthcare services which will enable women go safely through pregnancy and
childbirth and provide couples with the best chance of having a healthy infant.
Reproductive health is thus a constellation of methods, techniques and services that
contribute to reproductive health and wellbeing by preventing and solving reproductive
health problem.41 Reproductive health rights thus represent a paradigm shift from
maternal and child health and family planning as it is broader and more
comprehensive42.
2.1.4 Infertility
Infertility is the inability of a person, animal or plant to reproduce by natural means. It is
usually not the natural state of a healthy adult, except notably among
certain eusocial species (mostly haplodiploid insects). It is the normal state of a
human child or other young offspring, because they have not undergone puberty, which
is the body's start of reproductive capacity.43
In humans, infertility is the inability to become pregnant after one year of unprotected
and regular sexual intercourse involving a male and female partner.44 There are many
.
41
O Gbadamosi, Reproductive Health and Rights (African Perspectives and Legal Issues in Nigeria
( Ethiope Publishing Corporation, 2007)
42
A B C Nwoso, National Reproductive Health Policy and Strategy to Achieve Quality Reproductive and
Sexual Health for All Nigerians, (Federal Ministry of Health, 2001)
43
T Vos, et al., ‘Global, Regional, And National Incidence, Prevalence, And Years Lived With Disability For
310 Diseases And Injuries, 1990-2015: A Systematic Analysis For The Global Burden Of Disease Study
2015’. Lancet. [2016] 388 (10053): 1545–1602.
44
S H Chowdhury, Essentials for the Canadian Medical Licensing Exam: Review and Prep for MCCQE Part
16
45
causes of infertility, including some that medical intervention can treat. Estimates
from 2017 suggest that worldwide about five percent of all heterosexual couples have
an unresolved problem with infertility. Many more couples, however, experience
involuntary childlessness for at least one year: estimates range from 12% to 28%.46 The
main cause of infertility in humans is age, and an advanced maternal age can raise the
probability of suffering a spontaneous abortion during pregnancy.
Male infertility is responsible for 20–30% of infertility cases, while 20–35% are due
to female infertility, and 25–40% are due to combined problems in both parts.47 In
10–20% of cases, no cause is found.48 The most common cause of female infertility is
age, which generally manifests in sparse or absent menstrual periods.49 Male infertility
is most commonly due to deficiencies in the semen, and semen quality is used as a
surrogate measure of male fecundity.50
Women who are fertile experience a period of fertility before and during ovulation, and
are infertile for the rest of the menstrual cycle. Fertility awareness methods are used to
discern when these changes occur by tracking changes in cervical mucus or basal body
temperature.
I. (2nd edition. Wolters Kluwer, 2017).

45
R S Makar and T L Toth, ‘The Evaluation of Infertility’ American Journal of Clinical Pathology. [2002]
117 (Suppl): S95-103.
46
W Himmel, et al., ‘Management of Involuntary Childlessness"’. The British Journal of General
Practice. [1997] 47 (415): 111–118.
47
48
European Society of Human Reproduction and Embryology, ‘ART fact sheet (July 2014)"’
<https://en.wikipedia.org/wiki/European_Society_of_Human_Reproduction_and_Embryology> accessed
29th November, 2023.
49
National Health Service, ‘Causes of Infertility’ <https://www.nhs.uk/conditions/infertility/causes/>
accessed 29th November, 2023.
50
T G Cooper et al., ‘World Health Organization Reference Values for Human Semen
Characteristics’. Human Reproduction Update [2010] 16 (3): 231–245.
17
51
The World Health Organization defines infertility as follows:
Infertility is "a disease of the reproductive system defined by the

failure to achieve a clinical pregnancy after 12 months or more of
regular unprotected sexual intercourse (and there is no other reason,
such as breastfeeding or postpartum amenorrhoea). Primary infertility
is infertility in a couple who have never had a child. Secondary
infertility is failure to conceive following a previous pregnancy.
Infertility may be caused by infection in the man or woman, but often
there is no obvious underlying cause"
 Causes of Infertility
Male infertility is responsible for 20–30% of infertility cases, while 20–35% are due
to female infertility, and 25–40% are due to combined problems in both parts.52 In
10–20% of cases, no cause is found.53 The most common cause of female infertility is
age, which generally manifests in sparse or absent menstrual periods.54 Male infertility
is most commonly due to deficiencies in the semen, and semen quality is used as a
surrogate measure of male fecundity.55
The following causes of infertility may only be found in females. For a woman to
conceive, certain things have to happen: vaginal intercourse must take place around the
time when an egg is released from her ovary; the system that produces eggs has to be
working at optimum levels; and her hormones must be balanced.56
For women, problems with fertilization arise mainly from either structural problems in
51
WHO, ‘Infertility’
<https://web.archive.org/web/20131023231051/http://www.who.int/reproductivehealth/topics/infertility
/definitions/en/> accessed 29th November, 2023.
52
53
European Society of Human Reproduction and Embryology, ‘ART fact sheet (July 2014)"’
<https://en.wikipedia.org/wiki/European_Society_of_Human_Reproduction_and_Embryology> accessed
29th November, 2023.
54
National Health Service, ‘Causes of Infertility’ <https://www.nhs.uk/conditions/infertility/causes/>
accessed 29th November, 2023
55
T G Cooper et al., ‘World Health Organization Reference Values for Human Semen
Characteristics’. Human Reproduction Update [2010] 16 (3): 231–245.
56
B A Lessey ‘Medical management of endometriosis and infertility’ Fertility and Sterility [2000] 73 (6):
1089–96.
18
the Fallopian tube or uterus or problems releasing eggs. Infertility may be caused by
blockage of the Fallopian tube due to malformations, infections such as chlamydia or
scar tissue. For example, endometriosis can cause infertility with the growth of
endometrial tissue in the Fallopian tubes or around the ovaries. Endometriosis is usually
more common in women in their mid-twenties and older, especially when postponed
childbirth has taken place.57
Another major cause of infertility in women may be the inability to ovulate. Ovulatory
disorders make up 25% of the known causes of female infertility. Oligo-ovulation or
anovulation results in infertility because no oocyte will be released monthly. In the
absence of an oocyte, there is no opportunity for fertilization and pregnancy. World
Health Organization subdivided ovulatory disorders into four classes:
 Hypogonadotropic hypogonadal anovulation: i.e., hypothalamic amenorrhea
 Normogonadotropic normoestrogenic anovulation: i.e., polycystic ovarian syndrome
(PCOS)
 Hypergonadotropic hypoestrogenic anovulation: i.e., premature ovarian failure
 Hyperprolactinemic anovulation: i.e., pituitary adenoma58
Malformation of the eggs themselves may complicate conception. For
example, polycystic ovarian syndrome (PCOS) is when the eggs only partially develop
within the ovary and there is an excess of male hormones. Some women are infertile
because their ovaries do not mature and release eggs. In this case, synthetic FSH by
injection or Clomid (Clomiphene citrate) via a pill can be given to stimulate follicles to
mature in the ovaries.
57
Ibid
58
M H Walker and K J Tobler, Female Infertility (StatPearls Publishing, 2000)
19
Other factors that can affect a woman's chances of conceiving include being
59
overweight or underweight, or her age as female fertility declines after the age of 30.
Sometimes it can be a combination of factors, and sometimes a clear cause is never
established.
Common causes of infertility of females include:
 ovulation problems (e.g. PCOS, the leading reason why women present to fertility
clinics due to anovulatory infertility60)
 tubal blockage
 pelvic inflammatory disease caused by infections like tuberculosis
 age-related factors
 uterine problems
 previous tubal ligation
 endometriosis
 advanced maternal age
 immune infertility
Male infertility is defined as the inability of a male to make a fertile female pregnant, for
a minimum of at least one year of unprotected intercourse. There are multiple causes
for male infertility. These include endocrine disorders (usually due to hypogonadism) at
an estimated 2% to 5%, sperm transport disorders (such as vasectomy) at 5%, primary
testicular defects (which includes abnormal sperm parameters without any identifiable
cause) at 65% to 80% and idiopathic (where an infertile male has normal sperm and
59
Mayo Clinic, "Female Infertility". <https://www.mayoclinic.org/diseases-conditions/female-
infertility/symptoms-causes/syc-20354308> accessed 29th November, 2023.
60
A H Balen ‘Should Obese Women With Polycystic Ovary Syndrome Receive Treatment For
Infertility?’. BMJ. [2006] 332 (7539): 434–435
20
61
semen parameters) at 10% to 20%.
The main cause of male infertility is low semen quality. In men who have the necessary
reproductive organs to procreate, infertility can be caused by low sperm count due to
endocrine problems, drugs, radiation, or infection. There may be testicular
malformations, hormone imbalance, or blockage of the man's duct system. Although
many of these can be treated through surgery or hormonal substitutions, some may be
indefinite.62 Infertility associated with viable, but immotile sperm may be caused
by primary ciliary dyskinesia. The sperm must provide the zygote with DNA, centrioles,
and activation factor for the embryo to develop. A defect in any of these sperm
structures may result in infertility that will not be detected by semen
analysis.[74] Antisperm antibodies cause immune infertility.63 Cystic fibrosis can lead to
infertility in men.
In some cases, both the man and woman may be infertile or subfertile, and the couple's
infertility arises from the combination of these conditions. In other cases, the cause is
suspected to be immunological or genetic; it may be that each partner is independently
fertile but the couple cannot conceive together without assistance.
2.1.5 Assisted Reproductive Technology
Assisted Reproductive Technology refers to all technologies where gametes are
manipulated outside the body.64 ART provides a new ability to overcome infertility and
61
S W Leslie and L E Siref and M A B Khan, Male Infertility| (StatPearls| Publishing; 2020).
62
A Mishail, et al., Impact Of A Second Semen Analysis On A Treatment Decision Making In The Infertile
Man With Varicocele: 1809-1811
63
B Restrepo and W Cardona-Maya, ‘Antisperm Antibodies and Fertility Association". Actas Urologicas
Espanolas. [2013] 37 (9): 571–578
64
Research Gate, ‘Definitions of Assisted Reproductive Technology’,
<www.researchgate.net/pubication/270114469_Assisted_reproductive_technology_techniques_and_limit
ations> accessed on 14th accessed 29th November, 2023.
21
65
to separate reproductive process from sex. ART includes medical procedures used
66
primarily to address the problem of infertility.
With ART, the process of sexual intercourse is bypassed and fertilization of the oocytes
occurs in the laboratory environment.67 The CDC definition of Assisted Reproductive
Technology is based on the 1992 Fertility Clinic Success Rate and Certification Act that
requires CDC to publish the annual ART Success Rates Report.68 According to this
definition, ART includes all fertility treatments in which both eggs and embryos are
handled. In general, ART procedures involve surgically removing eggs from a woman’s
ovaries, combining them with sperm in the laboratory, and returning them to the
69
woman’s body or donating them to another woman. According to CDC, ART do not
include treatment in which only sperm are handled such as artificial insemination or
procedures in which a woman takes medicine only to stimulate ovulation without the
intention of having the eggs retrieved. 70
There are over 186 million couples in developing countries alone (excluding China)
today who are affected by infertility (both primary and secondary).71 Rates of infertility
vary considerably from country to country; in the worst affected areas, over 25% of
couples may be unable to have children.72 In addition to the personal grief and suffering
65
R J Chin, Assisted Reproductive Technologies Legal Issues in Procreation,(Yale: Yale University
Cushing/Whitney Medical Library,1996)p.1
66
Wikipedia, ‘Assisted Reproductive Technology’,<
https://en.m.wikipedia.org/wiki/assisted¬_reproductive_technology > accessed on accessed 29th
November, 2023.
67
ibid
68
‘The United States Centre for Disease Control Definition of Assisted Reproductive Technology’,
<https://www.cdc.gov?art?whatis.html> accessed 29th November, 2023.
68
ibid
69
Ibid
70
Ibid
71
E Vayena et al, ’Current Practices and Controversies in Assisted Reproduction: A Report of a WHO
meeting’ (2002)63 World Health Organization SHR ,2
72
Ibid
22
it causes, the inability to have children-especially in poor communities-can create
broader problems, particularly for the woman in terms of social stigma, economic
hardship, social isolation and even violence.73 In some societies motherhood is the only
way for women to improve their status within the family and community.74 It is not
surprising therefore, that there is a growing demand for services that can help infertile
couples conceive.75 In practice, this means ART. The fact that these services are
expensive and controversial has not prevented their appearance in developing
countries.76
The cost of obtaining ART is abysmal, especially in developing countries. The fact that
these services are expensive and controversial has not prevented their appearance in
developing countries.77 Since the first successful test tube baby (IVF) in 1978, medical
researchers have assembled a battery of medications and high-tech that have
transformed fertility treatment globally, leading to increased success rate of ART.78
The most outstanding reason for the popularity of ART is the modern life style with
increasing civilisation and urbanization. According to American Society for Reproductive
Medicine, the average age of child bearing has increased over the past three decades,
as more women have pursued higher education and careers and postponed marriage.79
Most women now marry after they have reached their late reproductive years.80
Controlled Ovulation Induction involves the stimulation of ovulation or egg production in
73
Ibid
74
Ibid
75
Ibid
76
Ibid
77
Ibid
78
Awake, ‘A Baby Boom through Assisted Reproduction’, (Watchtower, 2004,) 23
79
Ibid
80
Ibid
23
81
a woman usually by means of medication. This may be used in the treatment of
infertility in anovulatory women. However it may be used to stimulate ovulation prior to
egg retrieval for ART.82
Common Forms of ART
A. In vitro fertilization, IVF.
This involves the technique of letting fertilization of the male and female gametes
(sperm and egg) occur outside the female body.83 The technique used in IVF include,
1. Transvaginal Ovum Retrieval, OVR, which involves insertion of a needle through
the vagina into the ovaries to retrieve egg cells.84
2. Embryo Transfer, ET, which involves placement of one or more embryos into the
uterus with the intention of achieving pregnancy.85
B. Assisted Zona Hatching, AZH.
This is performed by making a small opening on the outer layer of the egg just prior
to embryo transfer to help hatch the embryo and subsequent implantation.86
C. Intracytoplasmic Sperm Injection, ICSI.
This is used in male factor infertility caused by very low sperm count or abnormal
sperm cells. ICSI involves injection of single sperm into the egg using a microneedle.87
81
S M Kelly and S L Tan, ‘Assisted Reproductive Technology’J Sex Reprod Med [2002] 2,154
82
Ibid
83
Wikipedia, ‘Forms of Assisted Reproductive Technology ’
<https://en.m.wikipedia.org/wiki/Assisted_reproductive_technology> accessed 29th November, 2023.
84
Ibid
85
86
Ibid
87
Ibid
24
88
With ICSI, one sperm per egg is needed.
D. Autologous Endometrial Coculture
In this technique, the patient fertilized eggs are placed on the uterine lining for embryo
development89. It is usually employed following several failed IVF attempts.90
E. Zygote Intrafallopian Transfer, ZIFT.
This involves placement of zygote into the fallopian tube to develop.91
F. Cytoplasmic Transfer
This involves injection of the content of a fertile donor egg into the infertile egg of the
patient along with sperm.92
i. Egg Donors
This involves retrieval of eggs from donor`s ovaries, which are fertilized in the laboratory
with sperm of recipient`s husband and subsequent transfer of the resulting healthy
embryo into the recipient uterus.93 This technique is used for women with no eggs or
poor quality eggs resulting from advanced maternal age.94
ii. Sperm Donation
Sperm donation may provide source of sperm for IVF where the male partner produces
no sperm or has an inheritable disease or where the woman has no male partner.
88
Ibid
89
Ibid
90
Ibid
91
Ibid
92
Ibid
93
94
Ibid
25
G. Preimplantation Genetic Diagnosis, PGD.
This involves the use of various genetic screening mechanisms to identify genetically
abnormal embryos in order to improve outcomes.95 This may also involve sex selection
to control the sex of the resulting offspring.
H. Embryo Splitting
This can be used to induce twinning and increase the number of available embryos.96
Other rare forms of ART techniques includes: Mitochondrial Replacement Therapy, MRT,
sometimes referred to as mitochondrial donation. MRT originated as a special form of
IVF which some or all of the future baby`s mitochondrial DNA come from a third party.
This is employed where the mother carry genes for mitochondrial diseases.97
Gamete Intrafallopian transfer, GIFT. Involves placement of a mixture of sperm and
eggs directly into the woman`s fallopian tubes. Cryopreservation, involves the
preservation of eggs, sperm, reproductive tissue or zygote by freezing at very low
temperature for later use.98
I. Surrogacy
Surrogacy literarily means ‘’substitute’’, the word is derived from the Latin word
“surrogates,’’ which means “appointed to act in place’’.99 Hence, it is an arrangement
between a couple or original mother of a baby with another woman who will carry the
95
Ibid
96
Ibid
97
D K Gardner et al, Human Assisted Reproductive Technology Future Trends in Laboratory and Clinical
Practice (United Kingdom: Cambbridge University Press,2011) p186
98
S M Kelly and S L Tan, ‘Assisted Reproductive Technology’ J Sex Reprod Med ,(2002)2,155
99
Y Olomojobi, Medical and Health Law the Right to Health (Ikeja :Princeton & Associates Publishing Co.
Ltd, 2019) p 319
26
100
pregnancy from conception to the delivery of the baby. The Assisted Reproductive
Technique (ART) Guidelines defines the procedure as: ‘An arrangement in which a
woman agrees to a pregnancy, achieved through assisted reproductive technology, in
which neither of the gametes belong to her or her husband, with the intention of carrying
it to term and handing over the child to the person or persons for whom she is acting as
surrogate. 101A ‘surrogate mother’ is a woman who agrees to have an embryo generated
from the sperm of a man, who is not her husband, and oocyte from another woman
implanted in her to carry the pregnancy to full term and deliver the child to its biological
parents.102
Popular terminologies used in describing the concept of surrogacy include:
1. Surrogate mother or surrogate: it applies to a woman who agrees to carry the
baby through the process and deliver the baby on behalf of the couple or original
parent.103
2. The commissioning Parent: This are the persons who originally own the baby
conceived from the surrogate arrangement and benefit of the delivery.104
Surrogacy has served as an alternative to adoption and has been referred to as
‘mothering by proxy’. American Law Reports has defined surrogacy as: ‘...a
contractual undertaking whereby the natural or surrogate mother for a fee,
agrees to conceive a child through artificial insemination with the sperm of the
natural father, to bear and deliver the child to the natural father, and to terminate
100
Ibid
101
Ibid p.320
102
Ibid
103
Ibid
104
Ibid
27
105
all of her parental rights subsequent to the child’s birth. The New South Wales
Law Reform Commission defined surrogacy as: ‘...an arrangement whereby a
woman agrees to become pregnant and to bear a child for another person or
persons to whom she will transfer custody at or shortly after birth’.106
Surrogate motherhood therefore is the procedure where one woman, the
surrogate mother, takes up the role of another woman, who is the intended
mother, but cannot produce fertile eggs or carry a pregnancy to term or birth.107
Surrogacy therefore is of two kinds:
a. Traditional Surrogacy:
This is also referred to as partial, natural, or straight surrogacy.108 It involves the
fertilization of the egg from the biologic mother with the sperm of the biologic father,
through a process known as insemination (which could either be natural or artificial).109
The surrogate mother’s egg and genetic material are used.
b. Gestational Surrogacy:
110
This is also referred to as host or full surrogacy. It involves the implantation of an
embryo created through IVF into the surrogate mother.111 The eggs used for fertilisation
are not derived from the surrogate mother.
2.2 Theoretical Framework
2.2.1 Theories of right
a) Benefit theory of right
105
Y Olomojobi, Medical and Health Law the Right to Health (Ikeja :Princeton & Associates Publishing Co.
Ltd, 2019) p 319
106
Ibid
107
Ibid
108
Ibid
109
Ibid
110
Ibid
111
Ibid
28
b) Will or choice theory of rights
c) Expectation theory of right
A. Benefit Theory of Right 112
According to this theory, a right confers some distinct or separate benefits on
individuals or holders of such rights. In other words, they enjoy special advantages not
enjoyed by others through the exercise of their rights. Where such benefits are non-
existent, there are no rights. Thus, a person’s right to life gives a distinctive benefit not
to be killed except as prescribed by law and raises a correlative duty on behalf of other
persons not to commit murder. A major discontentment with the benefit theory is that
rights are spoken of even when benefits accrue to third parties whose rights are not
directly recognized in any legal situation by a rule of law. For example, privity of contract.
B. Will or Choice Theory of Right113
This theory of right was put forward by Professor Hart. He contended that it is a fallacy
to say that a person has right because the law confers on him some benefits or
advantages while imposing duties or liabilities on others. He argued that a person has
a true right only if the law has given him the power to do at least one of the following
acts apart from the existence of a correlative duty in another person. The acts are as
follows:
(i) He must have the power to choose whether or not to waive a duty that has
arisen as a result of his own right or to leave in existence.
(ii) He must also have the power to choose either to enforce a breach or threatened
112
I Akomolede , Introduction to Jurisprudence and Legal Theory(Niyak print and Law Publications, Lagos,
2008),129.
113
Ibid. P.130.
29
branch of his right or not by suing for damages, injunction, specific performance
and others.
(iii) He must also have the power to waive a duty to pay compensation for breach of
the duty. To Hart therefore, freedom of choice is the hallmark of legal rights.
The theory has however been roundly criticized. For example, there are
categories of rights that do not lend themselves to choice. In other words, the holders of
such rights are not empowered to waive them and yet they are universally acceptable as
rights. For example, Fundamental rights and Rights of children.
C. Expectation Theory of Rights114
Another unpopular theory of right was advocated by the American and Scandinavian
realists who contended that rights are expectations. in their words a person can only be
said to have a right if he has a reasonable expectation that the right will be upheld and
respected by the society and her institutions. However, to think of rights in terms of
expectations misses the basic characteristics of rights especially the recognition of such
rights by law, its constitution in the holder of rights and the imposition of a correlative
duty on others not to derogate from the right.
2.3 Review of Related Literature
The jurisprudential implications of modern human artificial reproductive technologies
(ART) in Nigeria are a subject of increasing importance, given the profound legal, ethical,
and cultural challenges posed by these advancements. This literature review provides
an overview of key themes, findings, and debates in the existing literature related to the
intersection of ART and jurisprudence within the Nigerian context.
Okonta et al stated in their work that the legal landscape in Nigeria with regard to ART is
114
Ibid. P. 131.
30
a critical subject of exploration. Several studies have pointed out the lack of
comprehensive legislation specific to ART, contributing to legal uncertainties and
ethical dilemmas115. The absence of clear legal guidelines for parentage, custody, and
inheritance issues arising from ART procedures is of particular concern. This gap in the
legal framework has raised questions about the rights and protections of individuals
and families involved in ART.
The profound influence of cultural and religious values on the perception and utilization
of ART in Nigeria has been widely documented. Buchi in his work highlights the complex
interplay between traditional beliefs, Islam, and Christianity and how these factors
shape both public opinion and legal discourse. These cultural and religious perspectives
often intersect with legal and ethical considerations, adding layers of complexity to the
debate.
Okonofua116 posited that the issue of human dignity and the potential for
commodification of reproductive services have been highlighted. Ethical dilemmas
surrounding issues like selective reduction, surrogacy, and genetic modification
technologies such as CRISPR-Cas9 have been discussed in depth. The impact of these
ethical concerns on human rights, particularly women's rights and reproductive
autonomy, is also a matter of concern.
To Ezeome117, Sperm and oocytes are building blocks in assisted reproduction. Sperm
and ovum donation permit separation of the biological act of producing a child from the
115
P I Okonta, Ethical Issues in the Practice of Assisted Reproductive Technologies in Nigeria: Empirical
Data from Fertility Practitioners, [2018] 22(3) Afr J Reprod Health. 51-58
116
Okonofua, F. (2015) Prevention and Control of Cervical Cancer in Africa: A Call to Action. African
Journal of Reproductive Health, 19, 12-16
117
I V Ezeome, ‘Gamete Donation: A Review Of Ethical And Legal Issues’ Afr J Reprod Health [2022] 26[3]:
124-135
31
psychological process of nurturing and raising the child. However, the art of obtaining
and use of these gametes are fraught with ethical and legal challenges. Ezeome went
further to state the relevant aspects concerning anonymity, genetic screening,
consanguinity, informed consent and risk disclosure, compensation for donors, and
child welfare. Though the issue of anonymity remains controversial, the importance of
the welfare of the offspring has come to the fore as a result of the debate. Calls for
more rigorous genetic testing for donated gametes to avoid genetic disease
transmission, though supported by the principle of beneficence, has to be balanced by
its possible deleterious effects on the donors and their relatives especially if findings
reveal a serious genetic risk that has no medical treatment as yet. Reimbursement for
direct and indirect costs, as well as fair compensation for time lost, inconveniences and
risks suffered during treatment is recommended for oocyte donors. Ezeome stated
further that the risk of consanguinity remains a problem across the world even though
the different guidelines limiting the number of pregnancies by a single gamete may be
helpful, if enforceable. It is important that egg donors be clearly made to understand in
simple language during the informed consent process of the yet unknown health risks
involved so that the consent can be truly voluntary. This will protect donors from the
backlash of the doctrine of Volenti Non Fit Injuria. Ezeome also suggested that specific
legislation with regards to gamete donation, parenthood, and ART should be passed in
countries where these are absent, to avoid controversies that may arise due to current
gaps in the law.
Brezina and Zhao in their work118 stated that while assisted reproductive technology
118
P R Brezina and Y Zhao, ‘The Ethical, Legal, and Social Issues Impacted by Modern Assisted
Reproductive Technologies’ Obstetrics and Gynecology International [2012] 54(21)
32
(ART), including in vitro fertilization has given hope to millions of couples suffering from
infertility, it has also introduced countless ethical, legal, and social challenges. The
objective of their work was to identify the aspects of ART that are most relevant to
present-day society and discuss the multiple ethical, legal, and social challenges
inherent to this technology. Their work evaluates some of the most visible and
challenging topics in the field of ART and outlines the ethical, legal, and social
challenges they introduce. Brezina and Zhao found in their work that ART has resulted
in a tectonic shift in the way physicians and the general population perceive infertility
and ethics. In the coming years, advancing technology is likely to exacerbate ethical,
legal, and social concerns associated with ART. ART is directly challenging society to
reevaluate the way in which human life, social justice and equality, and claims to genetic
offspring are viewed. Brezina and Zhao opined Further, that these issues will force legal
systems to modify existing laws to accommodate the unique challenges created by
ART. Society has a responsibility to ensure that the advances achieved through ART are
implemented in a socially responsible manner.
Adelakun119 in his work opined that the journey from girlhood to womanhood in Africa
begins with betrothal to marriage. This journey is not complete and the place of an
African woman is not secure in her matrimonial home until such time as she is able to
procreate. As such, reproduction is an essential aspect of the African family system.
The inability of an African woman to fall pregnant within months of marriage is usually
seen as a cause for anxiety and if this condition continues for some years, the woman is
tagged barren and treated as a woman with a disability, seeing that the inability to
119
O S Adelakun ‘The Concept of Surrogacy in Nigeria: Issues, Prospects and Challenges’ African Human
Rights Law Journal [2018] 18, 605-624
33
conceive is seen as such. In most cases the husband’s family mount pressure on the
husband to either marry an additional wife or another wife in order to produce a child.
This leads many women to make desperate decisions which may not necessarily be
legally recognised, including the practice of buying babies. Adelakun’s work examined
the legal framework for surrogacy in Nigeria. It adopted a comparative method and
compared the legal frameworks governing surrogacy in Nigeria and South Africa. He
concluded that there is a lacuna regarding surrogacy in the laws of Nigeria which allows
for abuse during the surrogacy, and mde policy recommendations to provide the legal
architecture to protect stakeholders in surrogate agreements in Nigeria.
2.4 Summary of Literature Review and Gaps in Knowlegde
Okonta et al highlight the critical exploration of Nigeria's legal landscape regarding ART,
emphasizing the lack of comprehensive legislation specific to ART. This gap
contributes to legal uncertainties and ethical dilemmas, particularly in issues related to
parentage, custody, and inheritance arising from ART procedures.
The absence of clear legal guidelines for various issues related to ART procedures
raises questions about the rights and protections of individuals and families involved in
ART. There is a need for comprehensive legislation to address these gaps and provide a
more secure legal framework.
Buchi focuses on the profound influence of cultural and religious values on the
perception and utilization of ART in Nigeria. The complex interplay between traditional
beliefs, Islam, and Christianity intersects with legal and ethical considerations, adding
layers of complexity to the debate.
The review highlights the cultural and religious perspectives, but there is a need for a
34
deeper understanding of how these factors specifically impact legal discourse and the
formulation of policies related to ART.
Okonofua addresses issues of human dignity and the potential commodification of
reproductive services related to ART. Ethical dilemmas surrounding selective reduction,
surrogacy, and genetic modification technologies are discussed, particularly their
impact on human rights, especially women's rights and reproductive autonomy.
While the review addresses ethical concerns, further research is needed to explore
practical solutions and policy recommendations to balance advancements in ART with
the protection of human rights and ethical considerations.
Ezeome explores the ethical and legal challenges associated with gamete donation in
ART, covering aspects such as anonymity, genetic screening, consanguinity, informed
consent, risk disclosure, and compensation for donors. The importance of welfare and
the need for legislation in countries lacking clear guidelines are emphasized.
The controversial issue of anonymity and the potential deleterious effects of rigorous
genetic testing on donors and their relatives require further exploration. Additionally, the
effectiveness and enforceability of guidelines limiting the number of pregnancies by a
single gamete need more investigation.
Brezina and Zhao evaluate the ethical, legal, and social challenges introduced by ART,
emphasizing the transformative impact on societal perceptions of infertility, ethics, and
genetic offspring claims. They anticipate that advancing technology will exacerbate
these concerns, necessitating modifications to legal systems.
The review points out the evolving nature of challenges, but more research is needed to
understand the specific modifications required in legal systems and how society can
35
ensure the responsible implementation of advances achieved through ART.
Adelakun explores the cultural pressure on African women to procreate, leading to
desperate decisions, including the practice of buying babies. The legal framework for
surrogacy in Nigeria is examined, revealing a lacuna and policy recommendations to
protect stakeholders in surrogate agreements.
The review highlights a legal gap in surrogacy laws, emphasizing the need for a deeper
understanding of how cultural pressures impact legal frameworks. Further research is
needed to explore practical solutions and ensure legal protection in surrogacy
agreements in Nigeria.
36
CHAPTER THREE
LEGAL AND INSTITUTIONAL FRAMEWORK
3.1 Legal Framework
3.1.1 Constitution of the Federal Republic of Nigeria, 1999 (as amended)
In every given human society, there is always a supreme entity whose provisions or
dictates are final. This particular entity is the embodiment of sovereignty in that society.
In the pre – colonial times, it was usually the Gods of the land (in the South) or the
provisions of the Holy Quran (in the North). In contemporary Great Britain, the
parliament is regarded as supreme while in Nigeria, the constitution is regarded as
supreme.
The Constitution is the grundnorm in Nigeria. It is the law from which every other law in
Nigeria emanates from. It is supreme to every other law and any law that is inconsistent
with the provisions of the constitution shall be null and void to the extent of its
inconsistency.1
The right to health can be deduced from the right to life under chapter IV of the 1999
Constitution. Section 33 of The 1999 Constitution of the Federal Republic of Nigeria
provides for the fundamental right to life. It stipulates that
“no one shall be deprived intentionally of his life, save in execution of the
sentence of a court in respect of a criminal offence of which the person
has been found guilty in Nigeria.”
While the right to health care exist as a socioeconomic right under the Directive
principles of the government.2 Section 17(3)(d) of the 1999 Constitution Of The Federal
Republic of Nigeria as Amended 2011 stipulate
(c) the health, safety and welfare of all persons in employment are
1
Constitution of the Federal Republic of Nigeria 1999, s1(1).
2
Chapter II of the 1999 Constitution of the Federal Republic of Nigeria as amended 2011
37
safeguarded and not endangered or abused;
(d) there are adequate medical and health facilities for all person.
The Constitution creates a national health care policy, and the provision of health care
delivery is a concurrent responsibility divided into three sectors; tertiary, secondary and
primary, which remains the functions of the three tiers of government; federal, state and
local. However, this does not confer any legal right on the citizen in the event of non-
compliance by the Government as opposed to right to life under Chapter 4 of the
constitution in which the citizens can enforce by seeking recourse in court.
A striking question that comes to mind is, how does section 33(1) of the constitution
relate to right to health? This question can be better comprehended by considering the
definition of ‘health’. Health is defined as ‘the quality, state, or condition of being sound
or whole in the body, mind and soul especially freedom from pain or sickness.3 Also
important is the issue of relating health to the dignity of the human person as provided
for in section 34 of the constitution. The term ‘dignity ’is usually intended to lend
attribute to and recognise some status possessed by a person wherein his self-worth is
valued and respected.4 The constitution acknowledges this self-worth (which Thomas
Aquinas calls ‘observantia’, which concerns how dignity is honoured, respected or
observed). From the perspective of justice, it is regarded as both a general as well as a
special virtue.5
3.1.2 The National Health Act 2014
This Act, in section 5(1) provided a ‘comprehensive framework for the control,
regulation, development, and management of the National Health System, setting
3
Preamble to the Constitution of the World Health Organization as adopted by the International Health
Conference, NewYork,19-22,1946
4
Ibid p 23
5
Ibid
38
6
standards for rendering of health services’. The Act which was initially proposed in
st 7
2004, was eventually signed into law on 31 October, 2014. The Act established the
‘National Health System’ and sets out the responsibility, standards, and eligibility for
health services in Nigeria.8
The Act structurally, is divided into seven parts and sixty-five sections. The seven parts
relates to the following:
1. Responsibility for health services and establishment of the system
2. Health establishment and Technologies
3. Rights and Obligations of Users and Healthcare Personnel
4. The National Health Research and Information system
5. Human resources for Health
6. ‘Control of Use of Blood’, products of it, Tissues and Gametes in Humans
7. Regulations and its miscellaneous Provisions.
For the purpose of this research the following provisions of the Act are of paramount
importance:
In Part III of the Act, section 26 makes provisions for health establishments. This
section provides thus: 26(1) All information concerning a user, including information
relating to his or her health status, treatment or stay in a health establishment is
confidential. Section 26(2) also provided that this right to confidentiality may be waived
by the written consent of the patient, or overruled by a court order, or for the benefit of
public health.
Section 32(1) Provides that: Notwithstanding anything to the contrary in any other law,
6
Ibid p 61
7
Ibid
8
ibid
39
every research or experimentation in a living person shall only be conducted:-
a. In the manner prescribed by the relevant authority; and
b. With a written consent of the person after which he shall have been informed of
the objects of the research or experimentation and any possible effect on his
health.
Section 33(1) of the Act, provides that: there shall be established by the Minister, a
National Health Research Ethics Committee. While section 34 provided for the
functions of the health research ethics committee.
Section 34(2) provides thus: A health research ethics committee shall:
a. Review research proposals and protocols in order to ensure that research
conducted by the relevant institution, agency or establishment will promote
health, contribute to the prevention of communicable and non-communicable
diseases;
b. Grant approval for research by the relevant institution, agency or establishment in
instances where research proposals and protocol meet the ethical standards of
that health research ethics committee; and
c. Perform other functions as may be referred to by the Minister.
Part VI of the National Health Act-makes provisions in relation to the Control of use of
Blood, Blood Products, Tissue and Gametes in Humans. This part, deals explicitly on
‘Prohibition of Reproduction and therapeutic cloning of Human Kind’ it is very relevant to
this project work.
Section 50(1) provides that: a person shall not:-
a. Manipulate any genetic material, including genetic material of human gametes,
40
zygotes or embryos; or
b. Engage in any activity including nuclear transfer or embryo splitting for the
purpose of cloning of human being.
c. Import or export human zygotes or embryos.
50 (2) Any person who contravenes a provision in this section or who fails to
comply therewith is guilty of an offence and is liable on conviction to imprisonment
for a minimum of five years with no option of fine.
3.1.3 Rules of Professional Conduct for Medical and Dental Practitioners / Codes of
Medical Ethics in Nigeria
One of the statutory functions of the Medical and Dental Council of Nigeria, as
9
contained in Section 1; Sub-section2(c), of the Medical and Dental Practitioners Act
‘Reviewing and preparing from time to time a statement as to the Code of Conduct
which the Council considers desirable for the practice of the professions in Nigeria.’
Since that law came into effect, the Medical and Dental Council of Nigeria was
constituted in accordance with the provisions of the law. ‘Statement as to the code of
Conduct which the Council considers desirable for the practice of the profession in
Nigeria’ has been ‘prepared and reviewed from time to time.’ The last revision in 1995
was titled ‘Rules of Professional Conduct for Medical and Dental Practitioners in
Nigeria.’
It is the intention of the council that every medical practitioner should familiarise
himself or herself with the provisions of the code, so that he or she would practice the
profession with conscience and dignity; thus bringing the incidence of ethical violations-
9
MDPA 1990
41
to the barest minimum.
The Code has eight parts A to H as follows:
A. Preamble and general guidelines
B. Professional conduct
C. Malpractice
D. Improper relationship with colleagues or patients
E. Aspect of private medical or dental practice
F. Self-advertisement and related offences
G. Conviction for criminal offences
H. Miscellaneous.
Relevant areas from the code are highlighted as follows:
Section 2(b) provides for: The Physicians Oath’. This oath is to be declared by
prospective medical or dental practitioner, in Nigeria. It is a derivative of the Hippocratic
Oath. 10
Section 8 of the, ‘The international Code of Medical Ethics (Declaration of Venice 1983),
which provides for the duties of physicians in General, which among all is to maintain
the highest standards of professional conduct.
Section 9 of the above code provides for the general principles of ethics of medical and
dental practices in Nigeria. Section 23 which borders on ‘Assisted Conception and
Related Practices,’ provides that: ‘... While both sperm and egg donations in in-vitro
fertilisation are accepted as ethically sound practices, in embryo donations, gestational
surrogacy or full surrogacy, the practitioner will need to resolve ethical matters in
respect of the following:

10
Rules of Professional Conduct for Medical & Dental Practitioners in Nigeria, 1995
42
a. Counselling and Consent of the donor in respect of: willingness to donate, desire
to help infertile couples, psychological stress that may arise, screening for
genetic and infectious diseases to prevent transmission to recipient or the
offspring, informed consent to resolve social, psychological and legal
uncertainties, the need not to be informed of the outcome, and the likelihood of
not knowing the genetic offspring.
b. The gamete or embryo processing: There must be screening of family history of
genetic diseases, HIV and other infectious diseases. In situations where the
embryos are mixed, genetic ancestry may only be determinable by DNA testing.
c. The recipient is: screened for uterine fitness and gestational capability,
psychological stress, counselled that birth may not occur, informed on the extent
of the screening, told of limit of information given to donor on the outcome.
d. The offspring: there are options on the need for openness or secrecy with regard
to full disclosure. For now, in Nigeria, the principles applied in child adoption are
best in the present circumstances.
e. Monetary compensation for embryo: there are ethical considerations on
monetary payments, in view of the connotations of selling and commercialising
in early forms of human life. It has become necessary that the laws of the
country should make provisions for resolving this. Meanwhile the Medical and
Dental Council of Nigeria advises that gamete or embryo donation should be
made as a voluntary service and not commercialized.
f. Embryo donation for research: There is the ethical risk of trading in embryos that
are neither used to initiate pregnancy nor discarded. Such issues as donor
43
recruitment methods, monetary transactions, and types of researches to be to be
applied to embryo certainly need statutory regulation. The Medical and Dental
Council of Nigeria calls for appropriate legislation on the matter.
3.1.4 Matrimonial Causes Act
Unlike a void marriage, which is void ab initio, voidable marriage can only become void
at the instance of one of the parties to the marriage. In a voidable marriage, only the
court can pronounce that the marriage is void and subsequently nullify it.
Where either of the parties to a marriage is incapable of consummating the marriage by
virtue of Section 35 (1) (a) of the Matrimonial Causes Act 1970, that is one of the
parties is impotent the marriage is voidable.
Impotency is different from Sterility in that the latter refers to the incapacity to
procreate children while the formal is one who is incapable of having normal sexual
relations. Where sexual relations are partial or imperfect there will be no consummation.
The use of contraception or the practice of coitus interuptus amount to consummation
as it was held in the case of Baxter V. Baxter.11
It is noteworthy that to make a marriage voidable the incapacity to consummate must
exist both at the time of the marriage and the hearing of the Petition. Before a marriage
is declared voidable on the ground of incapacity to consummate, the Court must be
satisfied that the defect is not curable; that is it cannot be cured by medical treatment.
Section 36 of the Act provides that:
‘A decree of nullity of marriage shall not be made on the ground

that the marriage is voidable by virtue of section 5(l)(a) of this
Act unless the court is satisfied that the incapacity to
consummate the marriage also existed at the time when the
hearing of the petition commenced and that-
11
(1948) A.C.274
44
(a) the incapacity is not curable;
(b) the respondent refuses to submit to such medical
examination as the court considers necessary for the purpose of
determining whether the incapacity is curable; or
(c) the respondent refuses to submit to proper treatment for the
purpose of curing the incapacity.
(2) A decree of nullity of marriage shall not be made on the
ground that the marriage is voidable by virtue of section 5(l) (a)
of this Act where the court is of opinion that-
(a) by reason of-
(i) the petitioner's knowledge of the incapacity at the time of the
marriage; or
(ii) the conduct of the petitioner since the marriage; or
(iii) the lapse of time; or (b) for any other reason,
it would, in the particular circumstances of the case, be harsh
and oppressive to the respondent, or contrary to the public
interest, to make a decree’.
3.1.5 Assisted Reproductive Technology Bill 2016
It is worth noting that there is a pending Bill before the Nigerian Parliament to amend
the National Health Act in order to regulate assisted birth technology, to encourage the
safe and ethical practice of assisted reproductive technology services.12 The Bill aimed
at effecting this amendment was introduced to Parliament on 8 June 2016. If passed
into law, the Federal Ministry of Health will have the duty of developing policies for ART
and will accredit and regulate the practice of ART.13
3.2 Institutional Framework
3.2.1 National Assembly
The Nigerian National Assembly plays a crucial role in shaping the legal framework of
the country, and it is an essential institution for discussing and enacting laws related to
various topics, including reproductive technologies. When examining the jurisprudential
implications of modern human artificial reproductive technologies (ART) in Nigeria, it's
12
A Bill for an Act to amend the National Health Act to Provide for the Regulation of Assisted Birth
Technology, for Safe and Ethical Practice of Assisted Reproductive Technology Services and for other
Related Matters (2016) HB 16.05.610 C 3203 http://www.placbillstrack.org/ (accessed 23 June 2017).
13
National Health Act (Amendment) Bill 2016 clause 50(1).
45
important to consider how the National Assembly contributes to the legal landscape.
The National Assembly is responsible for enacting laws and regulations governing
various aspects of Nigerian society, including healthcare and reproductive technologies.
In the context of modern human ART, the assembly has to address issues such as in
vitro fertilization (IVF), surrogacy, and genetic engineering there are no specific
legislation in place. Legislation can establish the legal boundaries, rights, and
responsibilities related to these technologies.
Reproductive technologies often raise ethical and moral questions. The National
Assembly, through its legislative process, have to deliberate on these issues and
incorporate ethical principles into the legal framework. This might involve debates on
issues like the status of embryos, the rights of surrogate mothers, and the use of
genetic information.
The jurisprudential implications of ART include the protection of individual rights, such
as the right to privacy, reproductive autonomy, and the right to information. The National
Assembly should hasten the enactment of the Assisted Reproductive Technology Bill,
2016 in order to strike a balance between facilitating technological advancements and
safeguarding the fundamental rights of individuals involved in ART processes.
Additionally, Nigeria's alignment with international agreements and conventions
addressing reproductive technologies is underscored. The National Assembly is
identified as a key player in ensuring that domestic laws harmonize with international
standards, fostering coherence and compliance with global norms in the realm of
reproductive technologies.
3.2.2 Family
46
The family is a fundamental social institution that plays a crucial role in the context of
modern human artificial reproductive technologies (ART). When examining the
jurisprudential implications of these technologies in Nigeria, it's essential to consider
how the family, as an institutional framework, is impacted and how it, in turn, influences
the legal and ethical dimensions of ART14.
In the context of ART, families may be involved in medical decision-making processes.
Legal frameworks may need to clarify the roles and responsibilities of family members
in making decisions about fertility treatments, especially in situations where consent
and collaboration among family members are crucial.15
Modern ART can influence traditional family structures. Technologies such as
surrogacy, in vitro fertilization (IVF), and genetic testing can challenge conventional
notions of parenthood, lineage, and the roles of family members. The family, as a social
institution, may need to adapt to these changing dynamics, prompting legal discussions
on issues like parental rights and responsibilities.16
Also, the use of ART raises questions about legal parentage and the rights of
individuals involved, including biological parents, surrogate mothers, and donors. The
family, as a legal unit, becomes central in defining and protecting the rights and
responsibilities of its members.17
Nigerian society often places significant emphasis on cultural and ethical values. The
family, deeply rooted in cultural norms, is a key player in shaping the ethical discourse
14
J G Passet-Wittig and K Anne-Kristin , ‘Families formed through assisted reproductive technology:
Causes, experiences, and consequences in an international context’ Reprod Biomed Soc Online. [2022] 14:
289–296.
15
Ibid
16
J G Passet-Wittig and K Anne-Kristin , ‘Families formed through assisted reproductive technology:
Causes, experiences, and consequences in an international context’ Reprod Biomed Soc Online. [2022] 14:
289–296.
17
Ibid
47
surrounding ART. Debates about the moral implications of technologies such as
embryo selection and genetic modification may be influenced by cultural beliefs held
within family units.18
3.2.3 Centre for Reproductive Rights
The Centre for Reproductive Rights (CRR), as an international non-governmental
organization, is dedicated to advancing reproductive rights globally through advocacy,
litigation, and policy work. In the context of the jurisprudential implications of modern
human artificial reproductive technologies (ART) in Nigeria, the CRR plays a pivotal role
in influencing legal and policy discussions. This includes advocacy efforts to raise
awareness about the regulation and protection of rights associated with modern ART,
participation in legal challenges and litigation to safeguard reproductive rights, and
collaboration with local stakeholders for policy development and reform.19
Furthermore, the CRR contributes to capacity building and education initiatives in
Nigeria, empowering legal professionals, healthcare providers, and policymakers to
navigate the legal and ethical complexities of modern ART. Operating within the
framework of international human rights standards, the organization advocates for the
recognition and protection of reproductive rights, emphasizing principles such as
privacy, autonomy, and non-discrimination. Through collaboration with local
organizations, public awareness campaigns, and monitoring of the implementation of
reproductive rights laws, the CRR serves as a key institutional framework shaping the
legal and policy landscapes to protect reproductive rights amid advancing reproductive
18
Ibid
19
Centre for Reproductive Rights, ‘About Us’ < https://reproductiverights.org/about-us/> accessed
48
20
technologies in Nigeria.
20
Ibid
49
CHAPTER FOUR:
THE LEGAL AND JURISPRUDENTIAL EFFECTS OF ASSISTED HUMAN REPRODUCTIVE
TECHNOLOGIES: NIGERIA IN FOCUS.
4.1 Ethical Dilemmas relating to Assisted Reproductive Technology
Natural law holds that there are universal moral standards that are inherent in
humankind at all times, and these standards should form the basis of a just society.1
Humans are not taught natural law per se, but rather discover it by consistent choices
for good instead of evil.2 From the above description, it can be deduced that natural law
concerns ‘morality’, ‘ethics’, and ‘what is good’. It can therefore be further deduced that
the Natural law position, viz a viz Assisted Reproduction Technology can safely be
described as the moral and the ethical considerations of ART.
ART can raise complicated ethical challenges for the individuals involved, health care
professionals, and the greater society. Infertility treatments today create new
definitions of parents and children and require a re-thinking of the conventional notion
of family. For families facing infertility, decisions about family building become complex.
One ethical dilemma associated with ART involves the politics of embryo and what to
do with unused embryos as it is common knowledge that many couples fertilize as
many eggs as they can during their treatments and freeze any remaining embryos for
later use. In the United States alone, it has been estimated that about 600,000
cryopreserved embryos are being stored in fertility clinics across the country.3
Many of such cryopreserved embryos are used for family building, but a significant
1
Investopedia ‘Definition of Natural Law’ < https://www.investopedia.com/terms/n/natural_law.asp>
assessed on 1st December, 2023
2
ibid
3
C A Machado, ‘The fate of surplus embryos: ethical and emotional impacts on assisted reproduction’
JBRA Assist Reprod. [2020] 24(3): 310–315.
50
number remain unused. Couples are often ill equipped to make decision about what to
do with their embryos once their families are completed, or after they are separated,
legally divorced or dead. Hence for both ethical and legal reasons, clinics are often
reluctant to dispose embryos without a couple’s consent. Couples who desire to donate
their embryos for research are often confused by the laws and restriction hindering their
ability to donate4.
Very few couples elect to donate their embryos to other couples due to lack of
education about the option and ethical as well as moral concerns about giving one’s
genetically related embryos to an unknown couple. For this reason, it is important for
couples to think about what they will do with their remaining embryos before they
undergo ART involving embryo creation as this will prevent the uncertainty of what
becomes the fate of such embryos in many years or even decades to come. Given the
length of time some embryos have been cryopreserved, some people have included
them in their wills thereby delaying any conclusion.5
Third-party reproduction, in which another person enters into the baby making mix, such
as in surrogacy arrangements, also involves considerable risks and raises many ethical
concerns. There is no consensus about how to appropriately and ethically recruit
donors and surrogates or how to eliminate the risk of coercion or exploitation. Since
money is often exchanged, usually in large amounts, commercialisation of reproduction
is often suggested or implied.6
In addition, there is no guarantee that donors and surrogates fully understand the risks
4
C Aberu, et al., ‘Final destination of surplus cryopreserved embryos. What decision should be made?’
5
L M A Alizadeh and M D R O Samani, ‘Using fertile couples as embryo donors: An ethical dilemma’ , Iran J
Reprod Med. 2014 Mar; 12(3): 169–174
6
P Saxena et al., ‘Surrogacy: Ethical and Legal Issues‘ Indian J Community Med. [2012] 37(4): 211–213.
51
involved and its implication to enable them provide informed consent. This problem is
further compounded by the complete lack of standards for screening, counselling, or
education. Since the intended families always provide the full cost, which are usually
exorbitant, this puts a great deal of pressure on the health workers to act quickly and
provide donors and surrogates, thus creating a significant conflict of interest in terms of
whose interest are being protected.
Another significant issue to contend with is the health risk to the egg donors and
surrogate. These arise from the use of medications to stimulate ovulation, which have
been recorded to have deleterious health consequences as severe as certain types of
cancers. Surrogates who are made to carry the pregnancy on behalf of the couples may
be faced with obstetric complications.
New genetic technologies raise yet other ethical issues. For example, preimplantation
genetic diagnosis (PGD), which involves submitting embryos to genetic screening and
selecting the one, perhaps of the desired gender, or free from certain disease causing
genes, that is to be implanted into the uterus. Critics warn that PGD could lead to
gender discrimination or abuse. PGD raises ethical question of what happens to the
embryos not selected.
Another aspect to consider is the effect of ART techniques like surrogate mother or
donated sperm or eggs on the sanctity of marriage bonds. This is particularly
problematic in those techniques that may introduce a third party (a donor) or even a
fourth party (two donors) or a fifth party (two donors and a surrogate mother) to the
child bearing process. In this case, the parties must consider these questions:
a. What long-term emotional effects may such birth have on the parents when only
52
one of them-or neither-is the genetic parent?
b. How will the resulting offspring handle learning that his or her birth resulted from
unusual form of conception?
c. Should the child be informed about his or her parentage and be allowed to look
for the biological father or mother?
d. What are the moral and legal rights and obligations of one or more individuals
who donated the genetic material?
The question of anonymity as well as confidentiality also deserves mention. The
policy in most countries is to keep donors anonymous. The Human Fertilization and
Embryo Authority, which regulates the use of human reproductive material in Britain,
explains:
Except where donation is intentional between people known to

each other, current and past donors will remain anonymous to
the couples treated with their eggs or sperms, and to the
children who may be born as a result of that treatment’.7
However, this policy of anonymity has caused significant controversy and heated
debates. Antagonists contend that children deserve to have full sense of their identity.
In response to the issues ART has elicited, a bill to establish the Nigerian Assisted
Reproductive Technology (2016) was presented before the National Assembly in 2016,
however the bill has not been passed, as it did not enjoy the support from the
legislature.8
It is significant to note that the National Health Act, 2014, did not satisfy the quest to
7
J W, https://www.jw.org/en/library/magazines/g20040922/the_choices_the_issues
8
Y Olomojobi, Medical and Health Law the Right to Health (Ikeja Lagos:Princeton & Associates Publishing
Co. Ltd, 2019) p 329
53
improve on ART, although it recognized other evolving health technologies such as
cloning, bioethical research among others.9 The bill, Nigerian Assisted Reproductive
Technology, if passed will allow the Federal Ministry of Health to develop policies that
would regulate ART and persons who engage in the procedure.10
4.2 Legal issues raised by ART:
The following legal issues can arise from ART
1. The Concept of ‘Legal Personality’: If it is assumed that life begins at conception,
then the resulting embryo following fertilization will be viewed as a person cable of
enjoying all the legal rights and privileges accruable to a person; most importantly
the right to life and the right of being born alive. If we take this position, most
practices in ART such as destruction/disposal of unused human embryos will be
seen as infringing upon the fundamental human right to life and therefore contrary
to the provisions in section 33 of the Constitution of the Federal Republic of Nigeria
which provides that every person has a right to life, and no one shall be deprived
intentionally of his life, save in the execution of the sentence of a court in respect of
a criminal offence of which he has been found guilty in Nigeria.
2. Foetal Rights: These are moral right or legal rights of human foetus under natural
and civil law.11 The term ‘foetal rights came into wide usage after the landmark case
of Roe v Wade12 that legalised abortion in the United States of America. The foetus
is granted various rights in the constitutions and civil codes of several countries. The
only modern international treaty specifically tackling the foetal rights is the American
9
ibid
10
ibid
11
Wikipedia, ‘What is Foetal right’ <https://en.m.wikipedia.org/wiki/fetal_rights> assessed on 1st
December, 2023
12
Roe v Wade [1973] 410 US 113
54
Convention on Human Rights which envisages the foetal right to life from the
moment of conception. Based on the 1959 Declaration of the Rights of the Child,
preambular paragraph 9 of the Convention on the Right of the Child states that ‘the
Child needs appropriate legal protection before as well as after birth’. Under
European law, Foetus is generally regarded as an in-utero part of the mother and
thus its rights are held by the mother. In H v Norway13, the European commission did
not exclude that ‘in certain circumstances’ the foetus may enjoy ‘a certain protection
under Article 2, first sentence’. Three European member states (Ireland, Hungary and
Slovakia) grant the foetus the constitutional right to life. In English common law, the
foetus is granted inheritance right under the ‘Born Alive Rule’. The Islamic law grants
the foetus the right to life particularly after ensoulment, which usually happens after
40-42 days or four months after conception. Technology such as ART has made it
possible to regards the foetus as patent independent of the mother as decided in
Winnipeg Child and Family Services v G.14
The creation of human embryos for all research purposes is prohibited by the
Convention for the Protection of Human Rights and Dignity of the Human Being with
regard to the Application of Biology and Medicine.15
3. Problem of Concise Determination of Parentage: ART may make it difficult to
determine who the exact parent of the offspring is. This is even more compounded
in ART techniques involving three, four or five parties contributing to the resulting
offspring. The importance of determining maternity or paternity cannot be over
emphasised due to its legal implications such as establishing the rights and
13
H v Norway [1992] 73 DR 155
14
Winnipeg Child and Family Services v G [1997] 3SCR, 925
15
ibid
55
responsibilities of a parent. These may be important in solving legal problems of
devolution of property, inheritance and determination of lineage.
4. Litigation Problems: this may arise when the surrogate mother, or egg or sperm
donors revoke their initial agreement in order to claim their legal right to their genetic
children.
4.3 Parenthood and Parental Rights in the Context of Artificial Reproductive
Technologies in Nigeria
Traditionally, the concept of parenthood can be viewed both from biological and the
social perspectives. The former poses no difficulty whilst in the latter; adoption process
may vest the status of parenthood on the adoptive parents.
However, ART as the highest breakthrough in the medical treatment of infertility has
posed a difficulty in determining whether parties to the practice can be so categorised.
Although the Matrimonial Causes Act (MCA)16 does not define a parent, it recognizes
that parenthood is not necessarily limited to biology but could be by adoption. The MCA
recognizes a “child of the marriage” as
A child adopted since the marriage by the husband and wife or by either of them with
the consent of the other;
A child of the husband and wife born before the marriage, whether legitimated by the
marriage or not; and
A child of either the husband or the wife (including an illegitimate child of either of
them and a child adopted by either of them) if, at the relevant time, the child was
ordinarily a member of the household of the husband and wife.
16
Matrimonial Causes Act, Cap M7, Laws of the Federation of Nigeria, 2004
56
17
As remarked by Egbokhare and Akintola, the purport of this provision is that children
of a marriage can only come through parents who are legally married, either through
natural procreation or via adoption.18 Whilst aligning with this submission, it may be
safe to add that provided that the means of giving birth to the children do not suffer any
legal inhibition, such products will qualify as children under the law. For couples who
have children via ART, even in the absence of biological relationships to the children, their rights
could still be recognized in law. Unfortunately, as it stands, such persons would have to formally adopt
the child to “secure” their parental rights, as it is still unclear whether or not the courts would take side
with the biological parents.19
In another development, section 125 of the Child’s Rights Act, 2003 (CRA) provides for
some types of parents other than biological or natural parents, and also describes
parental responsibilities towards a child. The CRA recognizes adoptive and foster
parents as legal parents of a child. Section 14 of the CRA stipulates that every child has
a right to parental care, maintenance and protection, while Section 277 defines parental
responsibility as “all the rights, duties, powers, responsibilities and authority which by
law a parent or a guardian of a child has in relation to the child and his property”. The
provisions of the CRA are to the effect that parental responsibilities may be carried out
not only by biological parents, but also by adoptive and foster parents.
The question of ambiguity about parenthood only arises with the introduction of third-
party collaborators to the reproductive process. The parenthood question is two-fold:
first, who are the legal parents of a child born via collaborative reproduction; second,
17
Egbokhare OO and Akintola SO. Rethinking Parenthood within Assisted Reproductive Technology: The
need for regulation in Nigeria.
Bioethics.2020;34:578–584.< https://doi.org/10.1111/bioe.12759> accessed 12/06/2020
18
Section 69, Matrimonial Causes Act.
19
Ibid
57
what are the rights and duties (if any) of collaborating third parties. It is uncertain what
agreement the donor entered into with the IVF clinic, but the question remains—under
Nigerian law, will the donor be able to claim parental rights to any children that emerge
as a result of his donation? ART has introduced a huge amount of uncertainty into
Nigerian family law: the traditional rules governing assignment status have been altered,
and it is unclear who the legal parents of a child born through ART are, particularly when
there is a third-party collaborator. This poses a huge problem not just for the parents of
the resulting child, but also for the child itself.
Notwithstanding, products of the practice are to be accorded with rights and privileges
of children under the laws.
So also, parental duties and powers ordinarily vested on the parents or guardians of a
child are all the same. Regulating practice of ART with a view to streamlining the forms
and accord each form a legal status will go a long way to solve the puzzle.
4.4 Analysis of the Impact of Assisted Reproductive Technologies on Individual
Reproductive Rights and Autonomy
The impact of Assisted Reproductive Technologies (ART) on individual reproductive
rights and autonomy is a complex and multifaceted issue that involves legal, ethical,
social, and medical dimensions.
ART has significantly expanded the range of reproductive options available to
individuals and couples. Those facing infertility or reproductive challenges have
opportunities for biological parenthood through methods like in vitro fertilization (IVF),
surrogacy, and gamete donation. This expansion aligns with the principle of
reproductive rights, empowering individuals to make choices about their reproductive
58
20
lives .
While ART provides new possibilities, it also challenges traditional notions of
parenthood. Questions about genetic parenthood, gestational parenthood, and legal
parenthood may arise. This can lead to legal and ethical complexities, impacting
individual autonomy as individuals navigate these evolving concepts in family formation.
Also ART has influenced traditional gender roles and dynamics within relationships. For
example, gestational surrogacy may challenge traditional notions of motherhood. The
impact on gender equity and individual autonomy within relationships requires
thoughtful consideration in both legal and societal contexts.
The availability and affordability of ART procedures vary widely, creating economic
disparities in access. Individuals with financial means may have greater autonomy in
choosing and accessing reproductive technologies compared to those with limited
resources. This raises concerns about social justice and equitable access to
reproductive options.
The principle of informed consent is crucial in reproductive medicine. Individuals
undergoing ART procedures are generally required to provide informed consent,
ensuring they understand the procedures, risks, and potential outcomes. This emphasis
on informed decision-making supports individual autonomy in reproductive choices.
4.5 Risks of ART
ART though may be beneficial, is not without risks. Common risks associated with it
include:
a. Human error: this usually results from mistakes and mix up of sperms, eggs and
20
M D C Fortin and S Abele ‘Increased Length of Awareness of Assisted Reproductive Technologies
Fosters Positive Attitudes and Acceptance among Women‘ Int J Fertil Steril. [2016] 9(4): 452–464.
59
embryos. This could be an important cause of litigation for medical negligence.
b. Multiple births: studies have shown that multiple births- as a result of multiple
embryos transferred into the womb-increase the chances of premature birth, low
birth weight, still birth, and long-term disability.
c. Birth defects: some research has shown that children conceived through IVF
have increased risk of birth defects such as heart or kidney problems.
d. Mothers’ health: complications from hormonal treatment or multiple foetus
pregnancy increase the risks for the mothers.
4.6. Challenges of ART in Nigeria
The lack of regulation and legislation exposes Nigerians using ART to the deceptions of
some unscrupulous individuals, and this is a problem that could easily be cured by
regulating the use of ART. Besides, the problem of unregulated sperm donation or
banking may surface in Nigeria. The possibility of having multiple children fathered by a
single sperm donor potentially increases the odds of accidental incest. A newspaper
article of January 7, 2017 told the story of a 21-year-old University of Lagos
undergraduate who was a regular sperm donor at a popular clinic for one year.
He had read an article about a man in the U.K. rumoured to have fathered 800 children,
and this caused him to fear that he himself may have fathered 500 children, and, worse,
he worried about the prospect of his children getting married to each other in the future,
and about him accidentally sleeping with his daughter.21
Another serious issue is that of reproductive tourism. Impact of globalization attracts
reproductive tourism, as individuals are free to travel abroad for treatments not offered,
21
F Osakwe, ‘Sperm donor’s nightmare: ‘Have I fathered 500 children already?” The Guardian Newspaper
< https://guardian.ng/saturdaymagazine/cover/sperm-donors-nightmare-have-i-fathered-500-children-
already/> accessed on 01/12/2023
60
or perhaps not even legal, in their country of origin. There have been a number of high-
profile cases of reproductive tourism involving patients traveling to other countries for
treatment. For instance, in Bloods’ case22, the woman was able to export sperm to be
used for fertility treatment in Belgium as she was not able to use it lawfully in the United
Kingdom. Reproductive Tourism may give rise to conflicts of laws issues, especially in
the case of surrogacy where the surrogate is from one country and the commissioning
parents are from another.
In addition, the fate of extra embryos stored up may be worrisome in the country in the
future. For how long do the fertility clinics store them and at what conditions; keeping in
mind that power supply is a problem in Nigeria? Studies from developed countries have
shown that the viability of the frozen embryos reduces with longer storage time.23 Do
they get donated to someone else or are they to be destroyed? The views of the
Catholic Church regarding the embryo and personhood present a strong argument
against their destruction.24 The acceptability of third‑party gamete is controversial,
especially in the African setting. Bello et al. in a study conducted in Ibadan, Nigeria,
found only 35.2% and 24.7% of women open to accepting donated eggs and sperm,
respectively.25 Furthermore, the issue about parenthood (in the case of a sperm
donor/egg donor) comes to bear what right does the donor have regarding the child?
From the point of view of the child, is there a right to know about the means of his or her
conception and biological parent? Commodification of gametes is not considered a
major ethical challenge presently, but stakeholders are aware of this possibility in the
22
Ibid
23
J O Fadare and A A Adeniyi ‘Ethical Issues in Newer Assisted Reproductive Technologies: A View From
Nigeria’. Niger J Clin Pract [2015]18 Suppl S1:57-61.
24
L O Omokanye LO, et al., op. cit. note 3 at p. 3
25
F A Bello et al., ‘In Vitro Fertilization, Gamete Donation And Surrogacy: Perceptions Of Women
Attending An Infertility Clinic Inibadan, Nigeria’. Afr J Reprod Health, [2014] 18, 127‑33.
61
future43, also, its socio-legal implications in the absence of specific legal regulations.
4.7 Comparison of Nigeria's legal framework with that of some other countries
regarding Artificial Reproductive Technologies
4.7.1 Australia
The state of Victoria in Australia is recorded as the first to enact a legislation to regulate
assisted reproductive treatment. The legislation which was enacted in 1984, was then
restricted to the regulation of in vitro fertilization (IVF) which witnessed the first
pregnancy in Victoria in 197326.
In 2008, the state enacted comprehensive legislation on assisted reproduction,
complemented by a 2009 regulation that outlines the parameters for implementing
statutory provisions. Section 5 of the Act establishes guidelines for assisted
reproductive technologies (ART), emphasizing the paramount importance of the welfare
and interests of individuals born through treatment procedures. The legislation prohibits
the exploitation of reproductive capabilities and prohibits discrimination based on
sexual orientation, marital status, race, or religion. Qualified individuals, as outlined in
section 7, must be doctors working on behalf of a registered ART provider.
The Act stipulates that women can undergo medical procedures based on a medical
diagnosis and informed consent obtained after full counseling on the procedure's
necessity and risks. Gamete donation requires prior counseling, and donors must give
consent for the use of their gametes in specific treatments. Posthumous use of
gametes is permitted under specific conditions, including written consent from the
deceased person, approval from a Patient Review Panel, and counseling for the person
undergoing treatment.
62
Part 6 of the Act addresses the keeping of registers and access to information,
facilitating communication between donor-conceived individuals, parents, and donors.
Safeguards are in place to protect confidentiality, and section 68 exempts certain
documents from disclosure requirements to preserve privacy while preventing
incestuous relationships. The legislation emphasizes that a woman need not be married
or cohabiting with a partner to undergo ART procedures. Section 10(1) requires consent
from the woman and her partner (if any), with the definition of "partner" clarified by a
court decision to include individuals in de facto relationships, irrespective of gender.
This decision supports the autonomy of women who wish to be sole parents, ensuring
that obtaining consent does not compromise their legal status as the sole parent with
full responsibility for raising the child.
4.7.2 United Kingdom
The United Kingdom has established a comprehensive legal framework to govern
assisted reproductive treatments, with the Human Fertilization and Embryology Act of
1990 serving as the primary legislation. This act underwent amendments in 2008
(HFEA), with the goal of tightly regulating the field and preventing misuse of science
and technology. The Human Fertility Embryology Authority (HFEA) was created to
monitor and license facilities and practitioners involved in assisted human reproduction.
Section 3 of the HFE Act 1990 prohibits the use of gametes and embryos that have not
been certified or licensed by the HFEA, ensuring that only authorized embryos can be
used in assisted reproductive technologies.
In Quintavalle, R (on the application of) v Human Fertilization & Embryology Authority,
the court interpreted the prohibited activities under section 3 to include tissue typing in
63
conjunction with pre-implantation genetic diagnosis (PGD). The court described this
process as involving the development of an in vitro embryo, biopsy of cells, and analysis
of genetic material to determine tissue compatibility. Human cloning is expressly
prohibited by Section 4A of the 2008 Act, restricting the placement of certain embryos
and the mixing of human and animal gametes, with exceptions allowed under license.
Section 14 of the 2008 Act mandates counseling for all parties involved in assisted
reproductive procedures before any fertility service is offered. The Act emphasizes
obtaining consent from both the donor and the individual receiving treatment following
effective counseling. Controlled access to information is facilitated through the keeping
of registers, as outlined in Section 24, enabling individuals born through assisted
reproductive procedures to request information about their genetic parents, intending
spouses to seek information about partners, and donors to inquire about the resulting
child.
Posthumous reproduction is addressed in Section 39, allowing the use of cryopreserved
gametes and embryos, while Section 47 resolves issues of disputed parenthood by
establishing criteria for treating a woman as a parent. The Act recognizes the mother of
a child as the woman carrying or who carried the pregnancy to term. The provisions aim
to address fundamental questions of parenthood, emphasizing the importance of
determining parentage in cases involving assisted reproduction. The keeping of
registers ensures the availability of information, contributing to transparency and the
prevention of disputes, an approach worth emulating by similar jurisdictions.
64
CHAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
Conclusion
The legal and jurisprudential landscape of assisted human reproductive technologies
65
(ART) in Nigeria presents a complex and multifaceted scenario, influenced by both
domestic and international perspectives. The United Kingdom, with its Human
Fertilization and Embryology Act of 1990 and subsequent amendments in 2008, serves
as a notable example of a comprehensive legal framework regulating ART.
The impact of ART on individual reproductive rights and autonomy is substantial,
providing new possibilities for parenthood while challenging traditional notions. The
ethical dilemmas associated with ART, such as the fate of unused embryos, issues of
anonymity, and concerns about third-party reproduction, underscore the need for a
thoughtful legal approach that balances technological advancements with ethical
considerations.
In Nigeria, the absence of a specific legal framework dedicated to regulating ART raises
various challenges. The existing legal provisions, such as those in the Matrimonial
Causes Act and the Child's Rights Act, touch upon parenthood but do not adequately
address the intricacies introduced by ART. The proposed Nigerian Assisted
Reproductive Technology bill, though presented in 2016, awaits legislative action. Its
enactment would be a significant step forward in providing clarity, protection, and
guidance for individuals and entities involved in ART.
The risks associated with ART, ranging from human error to legal uncertainties
surrounding parentage determination, highlight the urgency of a legal framework in
Nigeria. The potential challenges, including reproductive tourism and the lack of
regulation leading to deceptive practices, emphasize the need for timely legislative
intervention to safeguard the interests of all stakeholders.
Drawing inspiration from the experiences of jurisdictions like the United Kingdom and
66
Victoria, Australia, Nigeria should consider implementing a comprehensive legal
framework that addresses the unique challenges posed by ART. This framework should
encompass issues of informed consent, access to information, parentage
determination, and the ethical considerations associated with third-party reproduction.
In the global context of evolving reproductive technologies, Nigeria has the opportunity
to establish a robust legal foundation that not only facilitates the practice of ART but
also ensures the protection of individual rights, ethical standards, and societal values.
As the legal and jurisprudential effects of ART continue to unfold, a proactive and
nuanced legal approach will be essential for Nigeria to navigate the complexities of this
rapidly advancing field.
5.2 Recommendations
1. Prompt Legislation and Implementation: The Nigerian government should expedite
the passage of the Nigerian Assisted Reproductive Technology (ART) bill presented in
2016. The enactment and effective implementation of this legislation will provide a clear
legal framework to regulate the practice of ART, protecting the rights of all stakeholders
involved.
2. Establishment of Regulatory Authority: The government should consider the
establishment of a specialized regulatory authority for ART, similar to the Human
Fertilization and Embryology Authority (HFEA) in the United Kingdom. This regulatory
body would oversee the licensing of facilities, practitioners, and enforce compliance
with legal and ethical standards in the field.
3. Informed Consent Guidelines: Develop and enforce guidelines for obtaining informed
67
consent from individuals undergoing ART procedures. These guidelines should ensure
that individuals receive comprehensive information about the procedures, potential
risks, and outcomes, empowering them to make informed decisions.
4. Clarity on Parental Rights: Clearly define the legal aspects of parental rights in the
context of ART. This includes addressing issues related to genetic, gestational, and
legal parenthood. Clarity in these matters will help prevent legal disputes and ensure the
protection of the rights of all parties involved, including children born through ART.
5. Address Economic Disparities: Implement measures within the legal framework to
address economic disparities in access to ART. Strive for equitable access to
reproductive technologies, and consider policies that make these technologies more
accessible to individuals with limited financial resources.
6. Ethical Oversight and Guidelines: Integrate ethical guidelines into the legal
framework to address ethical challenges associated with ART, such as the disposition
of unused embryos, issues of anonymity, and concerns about third-party reproduction.
Establish mechanisms for ongoing ethical oversight.
7. Public Awareness and Education: Implement public awareness and education
campaigns to inform the public about ART, its legal implications, and ethical
considerations. This will contribute to a better-informed society, reducing
misconceptions and potential legal challenges arising from lack of awareness.
68

Legal and Jurisprudential Implications of Assisted Reproductive Technology in Nigeria

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THE JURISPRUDENTIAL IMPLICATIONS OF MODERN HUMAN ARTIFICIAL

REPRODUCTIVE TECHNOLOGIES: NIGERIA IN FOCUS.

CHAPTER ONE: INTRODUCTION

1.1 Background to the Study

1.2 Statement of the Problem

1.3 Aim and Objectives of the study

1.4 Research Methodology

1.5 Scope and Limitation of the Study

1.6 Significance of the Study

CHAPTER TWO: LITERATURE REVIEW

2.1 Conceptual Framework

2.1.1 Human Reproduction

2.1.5 Assisted Reproductive Technology

2.2. Theoretical Framework

2.3 Review of Related Literature

2.4 Summary of Literature Review and Definition of Gap in Knowlegde

CHAPTER THREE: LEGAL AND INSTITUTIONAL FRAMEWORK ON REPRODUCTIVE

3.1 Legal Framework

3.1.1 Constitution of the Federal Republic of Nigeria 1999 (as Amended)

3.1.2 Matrimonial Causes Act

3.1.3 Child‘s Rights Act, 2003

3.1.4 Assisted Reproductive Technology Bill 2016

3.1.5 Lagos State guideline on Assisted Reproductive Technology 2019.

3.2 Institutional Framework

3.2.1. National Assembly

3.2.3 Centre for Reproductive Rights (CRR)

3.2.4 Society for Reproductive and Women's Health (SWRH)

3.2.4 Nigerian Association of Reproductive Health (NARH)

CHAPTER FOUR: THE LEGAL AND JURISPRUDENTIAL EFFECTS OF ASSISTED HUMAN

REPRODUCTIVE TECHNOLOGIES: NIGERIA IN FOCUS.

4.1 Analysis of the Impact of Assisted Reproductive Technologies on Individual

4.2 Exploration of Ethical and Legal Considerations Surrounding Access to Artificial

Reproductive Technologies for Various Socio-Economic Groups in Nigeria

4.3 Parenthood and Parental Rights in the Context of Artificial Reproductive

4.4 Assessment of Ethical Concerns Surrounding Artificial Reproductive

Technologies including Issues of Commodification, Exploitation, and Potential Harm to

regarding Artificial Reproductive Technologies

CHAPTER FIVE: CONCLUSION AND RECOMMENDATIONS

1.1. Background to the Study

raised a multitude of complex questions that demand rigorous examination. This

research embarks on a journey into the jurisprudential implications of modern human

diversity and the interplay of tradition and modernity.

ART encompasses a range of techniques, with varying complexities, designed primarily

techniques comprise medical and scientific manipulations of human gametes and

embryos in order to produce a term pregnancy2. Any procedure or method designed to

enhance fertility or “compensate for infertility” outside the traditional means of

obviate the need for marriage, intercourse, or even pregnancy to term.

Further, the emotional anguish associated with reproductive inability(ies), exacerbated

by social stigma, may be consigned to reproductive history with these technologies5.

Human ART encompasses a wide range of medical interventions such as in vitro

fertilization (IVF), surrogacy, and genetic modification techniques like CRISPR-Cas9.6

These technologies present both opportunities and challenges that necessitate a

complex7. The country currently lacks comprehensive legislation specific to ART,

leading to considerable ambiguity in practice.

jurisprudential dimensions of ART in Nigeria. By analyzing the legal and ethical

implications, this research will contribute to the development of informed policy,

1.2 Statement of Problem/Research Questions

demand astute navigation for the harmonious coexistence of technological

advancement and legal principles in the Nigerian context.

themselves ensnared in a labyrinth of complexities posed by modern ARTs. Unraveling

reproductive technologies into existing legal structures.

than merely contextual nuances, present themselves as challenges, shaping public