Assisted Reproductive Technology: A Panacea To ‘child-merchandizing’ In Nigeria.
S.T. AFOLABI ESQ.
Africa is no doubt a pronatalistic society by nature. In fact, Africans generally consider procreation (child bearing) as not only invaluable but, that, it gives a sense of fulfillment to an individual as it guarantees the continuity and longevity of a family’s lineage or family tree.
The situation is even worrisome as some African societies (Nigeria inclusive) consider it a social “Taboo” for a child not to continue to bare your name after you might have been long gone.
Infertility, from a socio-medico point of view is not only considered a social ‘misnomer’, but a biological and reproductive disorder.
A study conducted by the World Health Organization (WHO) in 2012 revealed that up to 20% of couples of reproductive age group in Nigeria suffer from infertility. A further study show that approximately 4% of women aged 30 years and above have never given birth to a child. Again, it is opined that infertility cases constitute the majority of medical cases handled by Nigerian gynaecologists in university teaching hospitals.
However, thanks to the innovations of science and technology, this reproductive disorder can now be conveniently addressed to a large extent via the instrumentality of Assisted Reproductive Technology (ART).
ART, simply put, are innovative, non-coital medical procreative procedures, that have brought respite to a number of childless persons and couples,
in other words, it includes all the procedures that help in the achievement of a successful pregnancy other than the conventional natural process of mating between an ‘adult’ human male and female.
Over the years, studies had shown that numerous successes have been recorded simply by adopting ART techniques of procreation thus bringing smiles to the faces of couples who had encountered challenges in adopting the natural process of child bearing on the one hand, or who consented to adopting the ART technique. Though it be needless to mention that ART is not without its own peculiar challenges, the successes recorded are quite remarkable.
Retrospectively, the first successful birth through the ART mechanism was a baby girl called Louise Brown. She was born on 25 July 1978 at 11.47pm in the United Kingdom, while baby Durga was born on the 3rd day of October 1978 in India as the world’s second baby conceived through the reproductive medical technology. Incidentally, the medical process leading to the birth of both babies were commenced at the same time by Dr Mukhopadhyay of India and British scientists Robert G Edwards and Patrick Steptoe respectively. Similar births have been recorded in other countries including Australia on June 30, 1980, Canada on December 25, 1983, South Africa in 1983 and Nigeria on March 17, 1989. Reports show that there are more than eight million babies born in the world through ART as of July 3, 2018.
Unfortunately for Nigeria, while other countries like the United Kingdom, Australia, USA and South Africa just to mention but a few have gone ahead in enacting specific legislative framework to regulate the practice of Assisted Reproductive Technology (ART) in their respective countries, Nigeria is yet to enact hers.
It is imperative to mention that currently in Nigeria, the principal legislation regulating healthcare delivery is the National Health Act of 2014. The Act provides a framework for regulating, developing and managing the national health system, and sets standards for rendering healthcare services in the federation and for related matters. The provisions in the Act are complemented by the Code of Medical Ethics in Nigeria which principally deals with ethical issues pertaining to medical practice. There are glimpses but very scanty provisions in both the legislation and the Code that could impact on assisted reproductive technologies in Nigeria.
One, out of the too many to mention lacunas in the Nigerian Act is the provision under section 4 of the Act for a National Council on Health, but whose functions are merely advisory.
In the United Kingdom, Lord Phillips of Worth Matravers MR had described the parliamentary policy on the UK Act that seeks to bring the creation and use of embryos under strict regulatory control as being for ethical reasons in the case of R (Quintavalle) v. Secretary of State for Health  EWCA Civ 29 para 36-38.
The regulatory regime referred to by the court in the UK has not been provided for in Nigeria. In the UK, the Human Fertility Embryology Authority (HFEA) is vested with the responsibility to license and monitor all issues relating to ART.
Child merchandizing or what is popularly called ‘child trafficking’ or ‘baby factory business’ occurs where child is sold for a piecemeal price to a potential buyer of such child. Child merchandizing is indeed a crime in Nigeria under the Criminal and Penal laws of the various States.
It is conceded without any fear of contradiction that while there may be various reasons people indulge in this criminal act for reasons best known to the perpetrators of these dastardly and heinous acts, the reason for baby factory business might not be far fetched from the inability of couples, single parents or individuals to conceive through natural reproductive process. This is the more reason ART if well regulated by specific legislation in Nigeria can go a long way in nipping the crime of child merchandizing or baby factory business in the bud.
In conclusion, it is recommended amongst other things, that our Legislative Arm of Government (National Assembly) in Nigeria should intensify efforts to passing any pending Bills before it on ART in Nigeria (if there are), and if there are no such bills, Civil Society Groups as well as the Nigerian Medical Association (NMA) should sponsor such Bill to the National Assembly. Further more, the current National Health Act of 2014, can be amended to meet up with global best practices in other advanced jurisdictions. This will ultimately help in curbing the inimical crime of child merchandizing in Nigeria.
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
This publication is not a piece of legal advice. The opinion expressed in this publication is that of the author(s) and not necessarily the opinion of our organisation, staff and partners.
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