Surrogacy in Nigeria: the legal risks for Australians
Surrogacy in Nigeria is becoming a consideration for some Australian intended parents, particularly Australians with Nigerian heritage who are looking to build their family in their country of origin. Nigeria is a large, diverse and increasingly visible destination for international surrogacy. However, it is also a destination that requires exceptional care.
The central issue is straightforward: surrogacy in Nigeria is unregulated. There is no comprehensive legal framework setting out who may enter a surrogacy arrangement, how the surrogate should be protected, how parentage is determined, or what process applies for a child to travel overseas. That lack of certainty can create serious legal, medical and practical risks for Australians.
An arrangement may be possible, but it must be planned properly from the beginning. As with any international surrogacy journey, prevention is far better than trying to fix a problem after a child has been born.
Nigeria Is an Unregulated Surrogacy Destination
Nigeria has become a growing surrogacy destination for intended parents from North America, Europe and, in smaller numbers, Australia. It is the world’s largest Black nation, and for many members of the Nigerian diaspora, returning there for fertility treatment or surrogacy can feel like a natural option.
Yet Nigeria does not have clear nationwide surrogacy laws. This leaves substantial uncertainty around the rights and responsibilities of the intended parents, surrogate and child.
A written agreement is therefore critical. It should clearly record that the intended parents are to be the child’s parents and that the surrogate does not intend to parent the child. However, an agreement does not remove all risks. Nigerian law is not entirely clear about the legal effect of surrogacy arrangements or the recognition of intended parents as the child’s legal parents.
Proper documentation, careful legal advice and a well-managed medical process are essential. Australian intended parents should not assume that a birth certificate issued overseas will automatically resolve parentage or citizenship issues at home.
Who Should Not Consider Surrogacy in Nigeria?
Nigeria is not an appropriate or safe option for every intended parent.
Its legal and social environment is particularly hostile to gay couples. It is also not an appropriate destination for single intended parents. The practical risks, legal uncertainty and potential exposure for those families are simply too significant.
In practical terms, the people most likely to consider surrogacy in Nigeria are heterosexual married couples. Even then, they must proceed cautiously and only after obtaining Australian legal advice.
International surrogacy is never a one-size-fits-all process. The law in Australia varies between states and territories, and a person’s place of residence may affect whether entering an overseas commercial surrogacy arrangement creates criminal-law risks. For a broader discussion of these issues, intended parents can read about surrogacy laws in Australia and New Zealand.
Altruistic Surrogacy Is Essential for Australians
Australian intended parents need to be especially careful about whether an arrangement is commercial or altruistic.
Australia has a strong public policy against commercial surrogacy. In six of Australia’s eight jurisdictions, people may risk committing an offence if they enter into a commercial surrogacy arrangement overseas. Depending on the jurisdiction and circumstances, potential penalties can be severe, including substantial fines and imprisonment.
Some Nigerian agencies dealing with Australians require the surrogacy arrangement to be altruistic for that reason. That requirement should not be treated as a mere formality. The financial arrangements need to be scrutinised closely, documented properly and considered against the law that applies to the intended parents at home.
Attempting to resolve parentage later through an overseas adoption process may create further problems. Adoption legislation in every Australian state and territory can create additional legal risks. More importantly, an adoption order made after birth may not solve the immediate question of whether the child had an Australian citizen parent at the time of birth.
That point matters enormously when applying to bring a child to Australia.
Maternal Health Risks Cannot Be Ignored
The most confronting issue about surrogacy in Nigeria is maternal health.
The World Health Organisation has reported an enormous difference between the lifetime risk of maternal death in Australia and Nigeria. In Australia, the estimated risk associated with pregnancy and childbirth is roughly one in 19,000 to one in 22,000. In Nigeria, it is around one in 19.
Those figures reflect a broad range of conditions, including pregnancies and births occurring without adequate maternity care. They do not mean that every hospital in Nigeria provides poor care. Major cities such as Lagos, with a population exceeding 20 million people, have access to significantly better medical facilities than many remote areas.
Nevertheless, the risk makes the choice of clinic, hospital and agency absolutely central to any arrangement.
- Use a reputable agency with a demonstrated capacity to manage surrogacy arrangements responsibly.
- Ensure the surrogate has access to high-quality antenatal, maternity and postnatal care.
- Understand which hospital will manage the pregnancy and delivery.
- Confirm how emergencies, complications and neonatal care will be handled.
- Make the surrogate’s wellbeing the first priority, not an afterthought.
No intended parent should attempt to arrange Nigerian surrogacy privately or informally. The stakes are too high for the surrogate and the child.
Single Embryo Transfer Is the Safer Approach
Stephen Page’s recommendation is clear: insist on single embryo transfer, consistent with Australian IVF practice.
Transferring more than one embryo increases the risk of twins or higher-order multiple pregnancies. Multiple pregnancy can substantially increase medical risks for the surrogate and babies. In a country where maternal mortality is already extraordinarily high, reducing avoidable risk is fundamental.
Single embryo transfer is not simply a clinical preference. It is an important safeguard for the health and safety of everyone involved in the arrangement.
Establishing Parentage and Australian Citizenship
The route home for a child born through surrogacy in Nigeria depends on demonstrating a genetic and legal connection to an Australian parent.
In Nigeria, intended parents may be recorded on the birth certificate. However, falsely claiming parentage is an offence. The birth registration process must be supported by a properly prepared written surrogacy agreement and accurate documentation.
When an application is made for Australian citizenship by descent, the Minister’s delegate may require DNA evidence. In many cases, this means attending the Australian High Commission in Nigeria for DNA collection.
The process generally involves:
- Providing DNA samples, usually by mouth swab, from the relevant intended parent and child.
- Having the samples placed in the required collection materials.
- Sending them through diplomatic channels to Canberra.
- Arranging testing through an Australian DNA laboratory, at the intended parents’ expense.
- Using the DNA result, identity documents and supporting evidence to progress the citizenship application.
Co-operation from the surrogate may also be needed. Once citizenship is established, the child can apply for an Australian passport and travel to Australia. Current citizenship information is available through the Australian Government’s citizenship by descent guidance.
The administrative process can be complex. It is wise to anticipate delays, document every step carefully and avoid booking travel based on assumptions about when citizenship or passport approval will occur.
Use a Parenting Plan to Protect the Family
Because parentage in Nigeria can be uncertain, intended parents should consider entering into a parenting plan under the Family Law Act 1975. Those in Western Australia may also need to consider the Family Court Act framework.
A carefully prepared parenting plan can address parental responsibility and record the surrogate’s consent for the child to travel to Australia and live there permanently. It can help make the parties’ intentions clear from the outset.
Depending on the family’s circumstances, it may also be appropriate to seek an Australian court order after returning home. That is not a standard answer for every family. The right approach depends on the facts, the documents available, the state or territory involved and the child’s particular circumstances.
Obtain Australian Legal Advice Before Starting
The most important step comes before an agency is selected, embryos are created or an agreement is signed: obtain legal advice in Australia.
It is deeply distressing when intended parents discover after the event that their arrangement may have exposed them to criminal penalties, adoption complications or difficulties securing their child’s citizenship. Many of those problems can be avoided with thoughtful planning from the start.
Every international arrangement should include a realistic contingency strategy. Families considering an overseas pathway should also understand why it is vital to have a back-up plan in surrogacy, particularly where parentage, citizenship and travel depend on processes outside Australia.
Surrogacy in Nigeria can be undertaken, but it should never be approached casually. The arrangement must be altruistic, medically responsible, carefully documented and consistent with Australian law. Good foundations matter. The builders of the Leaning Tower of Pisa learned that lesson the hard way.
About Stephen Page
Stephen Page is one of Australia’s leading surrogacy lawyers and an accredited family law specialist at Page Provan Family & Fertility Lawyers. Widely recognised for his work in Australian and international surrogacy law, he advises intended parents on legal pathways, parentage, citizenship and the risks that need to be managed before a journey begins. For tailored advice, contact Page Provan.
