The Need for Assisted Reproductive Technology Law in Nigeria UNIVERSITY OF IBADAN LAW JOURNAL To be cited as Unib Law Journal VOL. 2, No. 1, 2012: 19-41 18 University of Ibadan Law Journal The Need for Assisted Reproductive Technology Law in Nigeria Adewumi Afolasade A.* Abstract This article is aimed at sensitizing the Nigerian populace about Assisted Reproductive Technology, its antecedent and its attendant fundamental legal issues that will not change even as technology transforms how we think of the means of reproduction. So long as we have families, defining families and forming identities will bring about questions to be answered. We also need to find answers to concerns about safety and regulation of technology so as to guard against abuse. The article concludes by proposing a way forward in form of legal regulation in Nigeria. Introduction Children are very important in the African Culture because a childless marriage is often viewed in our culture as an incomplete marriage. When a couple is not forthcoming in producing children years after marriage, you find relatives suggesting to the husband to take a new wife, even when none of the relatives know if the problem is from the wife or not. Generally, it is often assumed that the fault is from the woman, which may not necessarily be the case. Many modern reproductive techniques which allow conception to occur without resorting to normal sexual intercourse now abound. These have helped many couples experiencing difficulty in conceiving naturally to have children. Treating infertility has become a highly competitive business, and the field itself is notoriously under-regulated. Along with advances in technology comes the need for government guidelines and laws to ensure that those technologies are used safely and responsibly. Infertility Infertility is a problem of both sexes.1Forty percent of cases of infertility are caused by female factors another 40 percent caused by male factors * LL.B Hons. (Ib.), B.L, LL.M (Ib.) Email address: sade_abidemi@yahoo.com; GSM number: 234-803-428-8083 1 “Infertility in Men & Women” available at http://sexeducationnow.com/infertility-men-women-causes-treatment.html (accessed 25 Oct. 11) see also PM News, “Causes of Infertility” (14 Jan 2011) available at http://pmnewsnigeria.com/2011/01/14/causes-of-infertility (accessed 25 Oct. 11). 19 The Need for Assisted Reproductive Technology Law in Nigeria while 20 percent is a combination of males and females.2 The prevalence of infertility in the United States is 20 percent among married couples, that is, one in every four couples is affected by infertility3.Generally worldwide, the incidence of Infertility is independent of the country’s development. Assisted Reproductive Technologies are generally considered to be a treatment for the condition of infertility. Infertility, however, can be seen as either a medical problem or a social condition of childlessness. From the social perspective, the common assumption is that the need and desire to have children is a normal part of our lives. According to most medical definitions, infertility is the inability to produce a child despite regular unprotected intercourse over a certain period of time during a woman’s fertile period. According to Bernard Dickens in an oft-quoted passage; Infertility includes infecundity, meaning inability to conceive or to impregnate and pregnancy wastage, meaning failure to carry a pregnancy to term through spontaneous abortion and Stillbirth. Infertility includes primary infertility, where a couple has never achieved conception, and secondary infertility, where at least one conception has occurred but the couple is currently unable to achieve pregnancy. 4 Infertility can also be defined as failure to conceive after twelve months of regular unprotected sexual intercourse.5 The World Health Organization (WHO), however, stipulates a time period of two years.6 2 Oyebode.N ,“How to Tackle infertility in men and women” available at http://www.punchng.com/Articl.aspx?theartic=Art201001060483468. 6 Jan 11(accessed 25 Oct. 11). 3 “How Infertility affects a Marriage”, available at http://www.associatedcontent.com/article/66949/how-infertility-affects-amarriage-html (accessed 25 Oct. 11). 4 Dickens.B, “Reproductive Law and Medical Consent”. 35(1985) U.T.L.J, 255 at 281. 5 The Royal Commission on New Reproductive Technologies, (Canada 1993); see also Pence.G, Classic Cases in Medical Ethics, “4th ed”, (USA: McGraw Hill, 2004) 153. 6 Canadian Health Law and Policy, “2nd ed”, (Canada, Ontario: Butterworth , 2002) 372. 20 University of Ibadan Law Journal Infertility is caused by or at least associated with several medical or (biological) environmental and social factors.7 The more common physiological causes are sexually transmitted diseases, smoking and age.8 Age affects the fertility of females more than males. Other possible causes of biological infertility include environmental toxins, workplace hazards, diet, alcohol, caffeine, illicit drugs, disease, medical procedures with unintended effects, sterilization and contraception. Infertility is an international public health problem. A general estimate is that between 8 to12 percent of couples experience some form of involuntary infertility during their reproductive lives.9 When extrapolated, to the global population, this means that 50 to 80 million people may be suffering from some infertility problem.10 Infertility can also be seen as a social condition deviating from a social norm. The social norm involves the model of a nuclear family, consisting of married heterosexual parents and their biologically related children. Under this model, infertility deviates from the “ideal family”. This model generates strong social pressure to satisfy the norm of couples to procreate. The basic assumption is that the need and desire to have children is a normal part of our lives.11 The stigma of childlessness is especially difficult for women, who have historically been defined and identified through their roles as mothers.12 7 “Infertility”, available at http://www.medicinenet.com/infertility/article.htm (accessed 25 Oct. 11). 8 see note 6 above at 373. 9 Sciarra. J , “Infertility: An International Health Problem”, 46 (1994) Int. J. Gynecol. Obstet, , 155. 10 Pence.G , Classic Cases; see note 5 above at 154. 11 Franklin.S, “Deconstructing Desperateness. The Social Construction of Infertility in Popular Representations on New Reproductive Technologies” in McNeil.M, Varcoe.I & Yearly.S, (eds.). The New Reproductive Technologies, (New York: St. Martins Press, 1990) 200. see also Alpern.K “Genetic Puzzles and Stork Stories: On the Meaning and Significance of Having Children” in Alpern.K, (ed). The Ethics of Reproductive Technology, (Oxford: Oxford University Press, 1992), 147. 12 Pfeffer.N , “Artificial Insemination, In Vitro Fertilization and the Stigma of Infertility” in Stanworth.M (ed), Reproductive Technologies: Gender, Motherhood and Medicine, (Minneapolis: University of Minneapolis,. 1987) 81;Oyerole.D, “Infertility”, Nigerian Tribune (8 Jul 2010), available at 21 The Need for Assisted Reproductive Technology Law in Nigeria Consequences of Infertility In addition to the personal grief and suffering it causes, the inability to have children especially in poor communities can create greater problems, particularly for the woman, in terms of social stigma, economic hardship, social isolation and even violence. In some societies, motherhood is the only way for women to improve their status within the family and the community13. On a practical level, many families in developing countries depend on children for economic survival. While many people therefore would not consider infertility a disease in itself, it can certainly be said to be a social and public health issue as well as an individual problem.14 Most of the infertility in developing countries in Africa like Nigeria is attributable to damage caused by infections of the reproductive tract, notably Gonorrhoea and Chlamydial infection.15 http://www.tribune.com.ng/index.php/natural_health/7919_infertility (accessed 25 Oct. 11); see also “Anthropologist examines Stigma of Infertility in Nigeria” (23 Apr 2009) available at http://www/physorg.com/news 159699827.html (accessed 25 Oct. 11). 13 Okonofua et al, “The Social meaning of Infertility in South-West Nigeria” (1997) 7 Health Transition Review, 205-220. 14 Unisa.S, “Childlessness in Andhra Pradesh, India: treatment-seeking and consequences”, (1999) 7 Reprod Health Matters, 54 -64; Papreen.N . et al. “Living with Infertility: experiences among urban slum populations in Bangladesh”. (2000) 8 Reprod Health Matters, 33 – 34; Christina de Kok.B, “Infertility in Malawi: Exploring its impact and social consequences” Centre for Research on Families and Relationships, Briefing 41, December, 2008, available at http://www.crfr.ac.uk/reports/rb41.pdf (accessed 25 Oct. 11); McDonald Evans, “A Global Perspective on Infertility: An Under Recognised Public Health Issue”, (2004) No. 18 Carolina Papers in International Health. available at http://cgi.unc.edu/uploads/media_items/a-global-perspective-oninfertility-an-under-recognized-public-health-issue.original.pdf (accessed 25 Oct.11 ); United States Congress office of Technology Assessment, Infertility, Medical and Social Choices, OTA-BA-358 (Washington, DC: U.S. Government Printing Office, May, 1998) ; Inhon.M and Van Balen.F, “Infertility Around the Globe, New Thinking on Childlessness, Gender and Reproductive Technologies” available at http://www.ucpress.edu/ebook.php?isbn=9780520927810 (accessed 25 Oct. 11) 15 Cates.W, Farley.T, Rowe.P, “Worldwide Patterns of Infertility: is Africa different?” (1985) 2 Lancet, 596–598;Araoye.M, “Epidemiology of Infertility: 22 University of Ibadan Law Journal Delayed diagnosis of Sexually Transmitted Infections (STIs), lack of diagnosis, incomplete therapy, no therapy or inappropriate therapy compounds the problems of STIs in Africa. After STIs, infections during or after abortion, and during and after childbirth represent the next major causes of female infertility in Africa16. The latter explains the preponderance of secondary infertility over primary infertility in Africa.17 In comparison, the developed countries of Europe and North America have more endocrine causes of infertility and have better facilities for the diagnosis and appropriate therapy of STIs and can therefore be expected to have better prognosis in infertility management. In certain parts of subSaharan Africa, the prevalence of infertility may be as high as 30% or more.18 In Africa, there are more tubal factors, more irreversible oligo- or azoospermia and fewer resources for the management of infertility due to economic, political, capacity building factors and the severity of disease. Infertility services in developing countries span the spectrum from prevention to treatment from a societal and public health stand point, prevention is cost effective and is considered by many governments and public healthcare providers to be a priority for service delivery. While prevention remains paramount, taken alone, it ignores the plight of infertile couples, including those with non-infectious causes of infertility. Infertility is on the increase all over the world including Nigeria19. The population that is involved with regards to infertility is as high as 20 to 25 Social Problems of the infertile couples”, (2003) Jun. 22 (2) West Afr. J. Med. 190 – 196; Giwa-Osagie.O, “ART in Developing Countries with Particular reference to sub Saharan Africa”: Report of World Health Organisation meeting on ‘Medical, Ethical and Social Aspects of Assisted Reproduction’ (Geneva: W.H.O, 2002) 22. 16 “Thread: Infertility in Africa” available at http://nigeriavillagesquare.com/forum/healthwise/21125-infertilityafrica.html. (accessed 25 Oct.11) . 17 Giwa-Osagie.O et al. “Aetiological Classification and Sociomedical Characteristics of Infertility in 250 couples”, (1984) 29 International Journal of Infertility, 104 – 108, see also Cates.W, Farley, Rowe.P, note 16 above at 596 – 598. 18 Cook.R et al., “Reproductive Health and Human Rights, Integrating Medicine, Ethics and Law”, (Oxford: Clarendon Press, 2003), 30. 19 see note 1 above. 23 The Need for Assisted Reproductive Technology Law in Nigeria percent of married couples20. One in five couples has fertility problems and the trend is on the increase. All over the world, the crisis of diagnosis and stress of fertility treatments are inadequately documented and we are not always aware of the wear and tear effect on a couple’s sexual and emotional life of finding themselves unable to be fruitful together without external intervention. The painful gap occupied by the fantasy baby haunts their daily relationship, impelling then to actualize the child of their dreams at all costs. Loss of control, frustration, deep shame and ferocious envy may spill over into other areas of their lives, inducing couples to restrict social contacts, avoiding child bearing couples and family or friends oblivious to their predicament. Depression, anxiety, panic attacks and agitation, magical thinking, paranoid anxieties, depersonalization and derealisation may prevail intermittently.21 The infertile are said to have three options: treatment by reproductive technologies, adoption or “live with it”. These options must be viewed in their social context particularly in the light of the prevailing perceptions and attitudes towards “family” relations.22 The adoption and “live with it” options have not yet alleviated public concerns. Public adoption can be said to involve a long and complex process and widespread acceptance of the “live with it” option would require a notable shift in social norm. The lack of adoption opportunities and the basic social unacceptability of the “live with it” option have contributed to the increasing demand for reproductive technologies and their regulation. The demand for reproductive technologies is high partly because the alternatives are difficult and or undesirable. Assisted Reproductive Technologies (ART) ART encompasses a wide range of techniques designed primarily to aid couples unable to conceive without medical assistance. It can also be defined as including all treatments that include medical and scientific manipulations of human gametes and embryos in order to produce a term pregnancy. 20 see note 1 above. Franklin.S, “Deconstructing Desperateness...” note 11 above. 22 Dolgin.J, “Choice Tradition, and the New Genetics: The Fragmentation of the Ideology of Family” (Winter 2000), 32 Com. L. Rev. 523 cited in Canadian Health Law and Policy, note 5 above at 375. 21 24 University of Ibadan Law Journal The types of reproductive technologies commonly used around the world are: Artificial Insemination by Husband (AIH), Artificial Insemination by Donor (AID), Gamete Intrafallopian Transfer (GIFT), In Vitro Fertilisation (IVF), Intra-Cytoplasmic Sperm Injection (ICSI) and Sub Zonal Insemination (SUZI), Cloning and Surrogacy. In Africa, the most widely practiced methods are AIH and IVF.23 Oocyte donation is also available. The least widely available methods are ICSI and Embryo Freezing. Countries that have centres offering donor semen insemination (AID), IVF and related ART are Cameroon, Ghana, Nigeria, Togo and Zimbabwe. Other countries such as the Benin Republic, Kenya and Sierra-Leone have physicians who offer AIH. Models/Approaches for Legal Regulation of ART The Regulation of Assisted Reproduction necessarily implicates our approach to motherhood because ‘reproduction’ clearly means ‘mothers’. This raises the question whether it is good to sacrifice the interest of poor infertile women to that of the community at large24. Garrison25 addressed the issue of conflicts of interest between mothers and children in medical decision making and argues for the equivalence of future and current children. She observes that parental decisions may be particularly suspect in the context of the treatment elected in pursuit of a much sought-after pregnancy. The infertile may ignore risks of “future children”, if the alternative is no children at all. Several models/approaches have been suggested for the legal regulation of ART. Some of which are: 23 Giwa-Osagie.O, Nwokoro.G, Ogunyemi.D “Donor Insemination in Lagos”, (1985) 3 Clinical Reproduction and Fertility, 305 – 310; Ashiru.A, Abisogun.A, Giwa Osagie.O “Fertilisation of Pre-Ovulatory Human Eggs and Development in vitro in Lagos”. (6th Annual Meeting, June, 19 – 21, , Baltimore, U.S.A: 1985) The Endocrine Society, Abstract 1434, 359; see also Giwa-Osagie.O et al. “Human Oocyte Recovery for in vitro fertilisation. The use of cervical mucus and plasma oestradiol as indices of follicular development”, 7 West African Journal of Medicine, 136 – 139. 24 Goodwin.M, “Prosecuting the Womb” (2008) 76 Geo.Wash.L.R.Rev.1657 . 25 Garrison.M, “Regulating Reproduction” (2008) 76 Geo.Wash.L.R.Rev.1623. 25 The Need for Assisted Reproductive Technology Law in Nigeria 1. Top-Down Approaches: The approaches in this category are the Rights Based Analysis26, the Contract Based Analysis27 and the Anticommodification Approach28. a) Rights Based Analysis - The best known proponent of this approach is Professor John Robertson who has argued that “if bearing, begetting or parenting children is protected as part of personal privacy or liberty, those experiences should be protected whether they are achieved coitally or noncoitally and that only substantial harm to tangible interest of others should… justify restriction (on use of reproductive technologies). This approach is not without its own criticisms. b) The Contract Based Analysis - This approach states that the Parental Right of those who conceive technologically should be governed by Contract Principles. There are a number of variations of this basic claim but the most sophisticated and detailed argument is that offered by Professor Marjorie Schultz. She, relying on the claim that technological conception “dramatically extends affirmative intentionality” by “eliminating uncertainty regarding procreative intentions”, urges that “within the context of artificial reproductive technique, intentions that are voluntarily chosen, deliberate, express, bargained for ought presumptively to determine legal parenthood”. Recognising that intention based parenthood has not been the norm outside the context of technological conception, she asserts that assisted reproduction differs from ordinary reproduction in that ordinary reproduction poses greater difficulties in severing intention about procreation from other motivations. She argues that the newness of the issues presented by scientific changes virtually demands consideration of new legal approaches and rules and that coital and technological conception present differences in moral and factual legitimacy. She acknowledges that the case for a contractual 26 see Garrison.M, “Law Making for Baby Making: An Interpretive Approach to the Determination of Legal Parentage”(2000) 113 Harv. L. Rev, 835. 27 See Garrison.M, “Law Making for Baby Making:..”. note 26 above; See also Storrow.R, “Parenthood by Pure Intention: Assisted Reproduction and the Functional Approach to Parentage”. (2002) 53 Hastings L. J.597, 640 – 648 . 28 See Garrison.M, “Law Making for Baby Making ...” note 26 above. 26 University of Ibadan Law Journal approach ultimately hinges on its desirability and feasibility. This approach is also not without its own shortcomings, one of which is that some contracts are unenforceable and contracts are rare in cases of IVF. c) Anticommodification Approach –This approach relies wholly or partially on the claims that reproductive capacity constitutes an attribute like sexuality or a body part that is so bound up with an individual’s personhood that it should not be subject of market transactions. This approach is solely concerned with the commercial aspect of technological conception and fails to provide guidelines on many legal issues raised by the new reproductive technologies. 2. The Mixed Approaches to Regulation29- The approach to the regulation of assisted reproductive technologies in the United States is a mixture of laissez faire. Human embryo research is severely restricted at the federal level but the provision of clinical services is largely subject to professional self regulation.30 3. An Interpretive Approach31 - This approach is propounded by Marsha Garrison and according to her, it relies on specific legal principles and policies. The methodology could be described as a form of legal casuistry, certainly, it bears a strong resemblance to the traditional process of analogical reasoning utilised by Judges. 4. The Functional Approach to Parentage32- This Theory appears to hold out the promise of breaking free of the traditional definition of the family and recognising alternative family forms. What new realms will open through the use of this theory of Parenthood are yet unknown. 29 For a detailed analysis of this model, See Garrison.M, “Law Making for Baby Making ...” note 26 above. 30 Gunning.J and Szoke.H, “The Regulation of Assisted Reproductive Technology” (Hampshire England: Ashgate Publishing Ltd., 2003) 55. 31 See particularly Garrison.M, “Law Making for Baby Making” ...n 26 above. 32 See Storrow.R, “Parenthood by Pure Intention...”n 27 above. 27 The Need for Assisted Reproductive Technology Law in Nigeria 5. The Communitarian Approach33- This Approach regulates reproduction in the name of collective well being. In Nigeria, ART is absolutely uncontrolled/unregulated even though we have a number of recognized fertility clinics in the country.34 The writer is of the opinion that, considering the current status of ART in Nigeria and bearing in mind the cultural/economic/religious/legal and social context of Nigeria, the Mixed Approach to Regulation should be used for the legal regulation of ART where the Federal Government will legislate generally and the States can also legislate with slight differences to suit their peculiar cultural or religious circumstance. It should however be noted that whenever there is a conflict between the Act and State’s Law, the provision of the Act will supercede. Regulatory Issues All over the world, the new assisted reproductive technologies have raised many challenging ethical and policy issues in recent decades. Decision makers, medical practitioners, scientists, courts, and the public in general are facing new quandaries that involve controversies among profoundly held values. The controversies bother round the following issues: 1. Number of Eggs Fertilised: Persons protective of embryos are naturally concerned about the large number of embryos that face discard in standard IVF and would ban IVF on that ground alone35. Others recognise the importance of IVF for infertile couples and urged that fewer embryos be created in the first place.36 Because there are limits on the number of embryos that can be safely transferred in one cycle, this means limiting the 33 For a detailed analysis of this approach, see generally, Carbone.J , “ If I Say “Yes” to Regulation Today, Will You Still Respect Me in the Morning?” (2007 -2008) 76 Geo. Wash. L. Rev.1747. 34 IVF in Nigeria : Alphabetical listing of IVF clinics in Nigeria, available at http://ivfnigeria.blogspot.com/2008/02/ivf-clinics-in-nigeria-contact-in. (accessed 25 Oct. 11) 35 See Belluck.P, “It’s Not So Easy to Adopt an Embryo”, N. Y. Times,(12 Jun 2005), at D5 (discussing the concerns regarding extra embryos and possible solutions). 36 See Tarkan.L, “Lowering Odds of Multiple Births” N. Y. Times( Feb. 19, 2008), available at http://www.nytimes.com/2008/02/19/health/19mult.html (accessed 25 Oct. 11). 28 University of Ibadan Law Journal number of eggs fertilised to two or three.37 Italy took a highly restrictive, prohibitory approach in 2004.38 Despite its low birth rate and resulting population and social welfare problems, it enacted an ART law that prohibits fertilising more than three embryos and requires that all be placed in the uterus.39The workings of IVF clinics in the area of stimulation and fertilization protocols should be regulated and not just left to the infertile and their doctors.40 2. Number of Embryos Transferred: The most important medical and social problem in IVF is the high rate of multiple births41 and the fact that IVF produces less healthy children raises a variety of problems42. Wise social policy and practice would take steps to minimise multiple births but doing so raises many issues bothering on procreative autonomy.43 37 See Tarkan.L, “Lowering Odds of Multiple Births…” note 36 above. Robertson.J, “Protecting Embryos and Burdening Women: Assisted Reproduction in Italy” (2004) 19 HUM. REPROD. 1693. 39 Robertson.J, “ Protecting Embryos and Burdening Women:…” note 38 above . 40 See Surdin.A, “Colorado Voters Will be Asked When ‘Personhood’ Begins” WASH. POST, July 13, 2008 A04. 41 See Robertson J, “Procreative Liberty and Harm to Offspring in Assisted Reproduction” (2004) 30 AMER. J. L. & MED. 7&10; Society for Assisted Reproductive Technology: IVF Success Rates. available at http://www.sart.org (accessed 25 Oct. 11). 42 See Tarkan.L , “ Lowering Odds of Multiple Births” note 36 above (“It is not that twins or triplets are undesirable, doctors say. But multiple pregnancies often lead to risky preterm births and other complications”). 43 ASRM guidelines have been credited with bringing down the rate of triplets or more, but the patient-centred arguments for doing so are also strong. See e.g.Pratt.K, “ Inconceivable? Deducting the Costs of Fertility Treatment” (2004) 89 Cornell L. Rev. 1121,1188 (“Recent data also indicate that multiple birth rates attributable to IVF have declined significantly since the adoption of the new treatment protocols.”); For a discussion of other options in Europe, See Robertson.J , “ Protecting Embryos and Burdening Women: Assisted Reproduction in Italy” note 38 above;Robertson.J, “ Commerce and Regulation in the Assisted Reproduction Industry” (2007)85 Tex. L.Rev., , 665, 699; Data from 2007 show average transfers of two to three embryos during a single IVF cycle. See Centres for Disease Control and Prevention, 2007 Assisted Reproductive Technology Success Rates: National Summary 38 29 The Need for Assisted Reproductive Technology Law in Nigeria 3. Limits on payments to Donors and Surrogates: This issue has a lot of complexities44. Donors and research subjects deserves and Fertility Clinic Reports (2007),available at http://www.cdc.gov/art/ART2007/PDF/COMPLETE_2007_ART.pdf (accessed 25 Oct. 11) (discussing transfer statistics); See Schieve.L et al., “Are Children Born After Assisted Reproductive Technology at Increased Risk for Adverse Health Outcomes?” (2004)103 Obstetrics & Gynecology , 1154, 1155 (noting that 36% of ART pregnancies conceived in 2001 resulted in deliveries of multiples); 2007 ART REPORT (stating that 54% of ART infants born in 2000 were part of a multiple birth compared with 3% of infants in the general population); President‘s Council On Bioethics, Reproduction and Responsibility: The Regulation Of New Biotechnologies (2004) 41 (stating that one in ten children born following a high-order pregnancy will die before their first birthday; the disabilities that multiples suffer include blindness, respiratory dysfunction, and brain damage; premature birth can lead to infection, respiratory distress, and heart defects; and that low birth weight may affect health throughout life, leading to hypertension, cardiac disease, stroke, and osteoporosis.); Yoshin.K & Garrison.J, “Stricter Rules on Fertility Industry Debated” Los Angeles Times (6 Mar, 2009),available at http://articles.latimes.com/2009/mar/06/nation/na-octuplets-laws6 (accessed 25 Oct. 11). The fertility industry is already working to reduce embryos transferred in a single cycle. ASRM and SART guidelines recommend single embryo transfer for women under thirty-five with a more favorable prognosis, judged by criteria such as first IVF cycle, good quality embryos, and excess embryos that can be frozen and saved for later transfers. The Practice Comm. of the Society for Assisted Reproductive Technology and the Practice Comm. of the American Society for Reproductive Medicine “ Guidelines on the Number of Embryos Transferred” (2008) 90 Fertility & Sterility S 163. 44 There are some untested bans on paying surrogates. See Gostin.L, “Surrogacy from the Perspectives of Economics and Civil Liberties” (2001) 17 Journal of Contemporary Health Law and Policy. 429 – 430 (“The District of Columbia and Arizona ban surrogacy contracts. Florida, Michigan, Nevada, New Hampshire, New York, Virginia, Washington and West Virginia ban payments to surrogates, but have broad exceptions to allow the payment of expenses.”);Green.R, “ Five Ethical Questions for SCNT Stem Cell Research.” (2008) 9 MINN. J. L. SCI. & TECH, 131, 139 (“[S]everal states, including California and Massachusetts, passed laws prohibiting payment for eggs for research.”); Maher, “ Egg Shortage Hits Race to Clone Human Stem Cells” (2008) 453 Nature, 828-29. It has also led to the use of animal eggs or hybrids as an alternative, which creates in turn the need for additional policy statements and guidelines from ethics and regulatory bodies; Munzer.S , 30 University of Ibadan Law Journal protection which could be achieved by greater attention to informed consent, clinical practice and coverage of medical care in the case of injury but this opinion is not without opposition.45 4. Contracting to create families/Determination of Parenthood: This area raises questions about the meaning of family as construed in social practice and family law. Presently in the United States, there is no uniformity in this area among the states. The general movement of law, which is not even followed in all places, is from status to contract.46 Controversies here become more complicated with ART procedures using donors and surrogates. With issues ranging from what constitute a parent in non-coital settings, or whether contractual undertakings can control a parent’s right or duty to rear, even if state law holds a contrary view? A major challenge is how to work out the meaning of procreative liberty in the context of family creation through the use of donor and surrogates. 5. Gay and Lesbian Reproduction: Most of the societal conflict about recognising gay and lesbian families has centred on same sex marriage, not on direct prohibition of gay and lesbian reproduction.47 Reproductive technologies are used by gay and “Human-Nonhuman Chimeras in Embroyonic Stem Cell Research”( 2007) 21 Harv. J. L. & Tech., 123. 45 Using Preimplantation Embryos for Research, Committee Opinion (American College of Obstetrics & Gynaecology Committee on Ethics, Washington, D. C.), (Nov. 2006) 1, 12; International Society For Stem Cell Research, Guidelines For The Conduct Of Human Embryonic Stem Cell Research ( 2006),available at www.isscr.org/guidelines/ISSCRhESCguidelines2006.pdf (accessed 25 Oct. 11);Chopra.A, “Childless Couples Look to India for Surrogate Mothers” Christian Science Monitor (3Apr 2006),available at http://www.csmonitor.com/2006/0403/p01s04-wosc.html (accessed 25 Oct. 11); For some of the problems with paying research subjects under a market approach, see Elliot.C, “Guinea-Pigging” New Yoker, (7 Jan 2008) 36. 46 Maine.H , Ancient Law (1861) 170 (“The movement of the progressive societies has hitherto been a movement from Status to Contract”); See also Robertson.J , “Assisting Reproduction, Choosing Genes and the Scope of Reproductive Freedom” (2008) 76 The George Washington Law Review (2008) 1504. 47 See Robertson.J, “Gay and Lesbian Access to Assisted Reproductive Technology” (2004) 55 Case W. Res. L. Rev. 323; Goodridge v. Department 31 The Need for Assisted Reproductive Technology Law in Nigeria lesbians who were not originally within the contemplated category of beneficiaries. According to a survey conducted by the Office Technology Assessment (OTA), USA in 1986-1987, there were approximately 4,000 requests for Artificial Insemination by Donor (AID) from single women and 1,000 requests from lesbian couples.48 According to findings “The various techniques for assisted reproduction offer not only the remedy for infertility but also offer the fertile single woman or lesbian couple that chance of parenthood without the direct involvement of a male partner”49. The challenge of how to balance between placing a ban on the use of ART by this category of people and the questions of the constitutionality of such a ban on the face of procreative liberty and the right of equality respectively guaranteed. 6. Genetic Challenges - The Right to Screen and Alter Offspring Genes: IVF has made external access to embryos possible. It is easy to obtain embryonic DNA prior to a decision to discard or transfer the embryo. Theoretically, DNA microarray technology and single-nucleotide polymorphism maps50 will allow ever broader genome-wide screening of embryos to take place prior to transfer. The demand for embryo screening and negative selection will rise as families try to minimise predisposition of their children to genetic diseases and chronic adult diseases. The studies carried out by Mario Capecchi, Martin Evans and Oliver Smithies, the receivers of the 2007 Nobel Prize in Physiology and of Public Health, (Mass.2003) 789 N.E.2d 941, 943 takes an equal protection approach based on equal treatment of offspring born to same-sex couples. The court cites approvingly either states cases on the legality of ARTs; N. Coast Women’s Med. Group, Inc. v. Superior Court, 40 Cal. Rptr. 3d 636 (Cal. Ct. App. 2006); Interestingly, repeat surrogates say that they prefer to work with gay male couples because such couples are less complicated; Bellafante.G, “Surrogate Mothers’ New Niche: Bearing Babies for Gay Couples” New York Times, May 27, 2005 A1. 48 Anne R. Schift; Frustrated Intentions and Binding Biology: Seeking AID in the Law, 44: 3 Duke LJ, 538 49 Baroness Warnock; Warnock Committee Report 1984 CMND 91314 50 See Human Genome Project: SNP Fact sheet, available at http://www.ornl.gov/sci/techresources/Human_Genome/faq/snps.shtml (accessed 25 Oct. 11). 32 University of Ibadan Law Journal Medicine51 point to the fact that genetic alteration will follow in the wake of widespread embryo screening. Their studies also suggest that DNA could be inserted and turned on at will.52 Gene targeting would in the future, be used to identify gene function and to provide models for studying and treating diseases. This area conjures up the idea of parents being able to use this technology to empower their children, before birth, with super qualities and create inequality between them and coitally produced children in the society.53 Even though this area of technology is still undeveloped all over the world, law makers and policy makers should start thinking along the line of regulating this field. 7. Right of Privacy – There is a the believf that the choice of conception or means by which conception is achieved between a couple is as much to them a private matter just as much as the choice of use of contraceptive sheets or not to, remain a decision within the ambit of their private realm. In Giswold V. Connecticut54, the U.S. Supreme Court upheld a married couple’s right to use contraceptives noting the “right to privacy in procreative decision making that emanates from penumbras of basic rights found in the Constitution’s Bill of Rights” – the right to procreate, it is argued, must be recognised as a fundamental one and such latitude, it is reasoned, cannot be filtered by restricting citizens to a particular mode of procreation. The right to procreation is even commended to all believers and followers of the Christian faith. God said to them “be fruitful and multiply 51 The winners of the 2007 Nobel Prize in Biology recognised the scientific basis of genetic engineering; they used the principle of homologous recombination, building from studies in which scientists had previously “found that artificial DNA of known sequence could engage in homologous recombination with mouse DNA, and exploited this to target specific mouse genes.” Abbort.A, “Biologists Claim Nobel Prize with a Knock-Out (2007) 499 NATURE 642. 52 note 49 above. 53 On genetic enhancement generally, see Buchanan.A, Brock.D, Daniels.N & Wikler.D, From Chance to Choice: Genetics And Justice. (2007) 104-202 cited in Inmaculada de Melo-Martin, “ Ethics and Uncertainty: In Vitro Fertilization and Risks to Women’s Health” http://law.unh.edu/risk/vol9/summer/demelo.pdf (accessed 25 Oct. 11). 54 381 U.S. 779 at 484-85 (1965) 33 The Need for Assisted Reproductive Technology Law in Nigeria and fill the earth and subdue it...”55The right to procreation does not cease merely because a person or couple is unable to achieve procreation through the traditional means. In Skinner v. Oklahoma56 the court asserted procreation is “fundamental to the very existence and survival of the race”.57 It is however arguable whether, with the emergence of ART, marriage or the necessity to marry in order to procreate still plays such a crucial role in human survival. 8. Procreative Tourism – with the globalisation of ART in regulating infertility treatment, gametes and embryos may be imported and exported from country to country or from state to state in search of one that permits the desired treatment or allows the chosen gametes to be used. This termed PROCREATIVE TOURISM. For example, if a couple in country A seek donor insemination but do not wish to be subject to Country A regime of identified sperm donor, they might choose to go to Country B for treatment with anonymous sperm donation.58 9. Legitimacy – Legitimacy is the status acquired by a person who is born in lawful wedlock. The question of legitimacy is strongly connected with status. A child may be born legitimate or acquire that status by subsequent legitimation by the putative father.59 AID introduces a third party who produces the semen for the wife. The question raised is what is the status of a child born through AID since it is against the general accepted definition of legality and it deemphasises lawful wedlock? The child of an unmarried mother and an anonymous donor would probably be able to inherit the property of the mother only going by the domicile rule. The 1999 Constitution of the Federal Republic of Nigeria, Section 42 (2) provides that “no citizen of Nigeria shall 55 The Holy Bible; King James Version, Genesis Chapter 1, Verse 28, published by Trinitarian Bible Society. 56 316 US 535 (1942) 57 See also Eisenstadt v. Baird 405 US 438 (1971); Planned Parenthood of Southeastern Pennsylvania v.Casey 505 11 S (1992) 58 See Blood case (1979) 2 AER 684; Re M B (1997) 38 BM & R 173; St. George’s Health Care NHS Trust v. SR v. Collins, ex P. 3 (1998) 3 A. E. R. 673; 59 Nwogugu, Family Law in Nigeria, revised edition, Heinemann Publication; Cheshire & North’s Private International Law, 10th edition, Butterworth. 34 University of Ibadan Law Journal be subject to any disability of deprivation merely by reason of the circumstances of his birth”. The term disability is defined as an “incapacity” for the full enjoyment of ordinary legal rights. The question then is which rule should prevail? The rule of domicile or the constitution? The poser at this junction in view of Section 41 of the 1999 Constitution is that a child born through donor insemination without the consent of his father is legitimate60. 10. Inheritance – Inheritance problems may arise for un-implanted (fresh or frozen) embryos after the death of genetic parents. Suggestions as to what should happen after the death of genetic parents has been made and it ranges from removing them from storage, not granting legal or inheritance rights to them, appointing guardians for them by the court to the hospital being made a trustee for the late parents and be responsible for the fate of the embryos.61 Legal Control of ART – Case Studies around the World When faced with ethical conflicts or complicated technical issues, policymakers often turn to or create commissions for advice.62 This has been the case with the new assisted- reproductive technologies. The Victorian government in Australia passed The Reproduction Treatment Act in December 2008.The Act requires all prospective IVF patients to have criminal background checks to ensure they have no previous history of violent or sexual crimes. This, according to the writer, is to prevent a situation where offspring that will exhibit such negative traits will be produced. The legislation has however elicited angry responses from those in the industry.63 60 Akinboade Modupe, Assisted Reproductive Technologies: Who owns the child. A long essay submitted to the Faculty of Law, University of Ibadan, in partial fulfilment of the requirements for the award of the LL.B Hons. Degree, October, 2002. 61 See Smith S. P, Australia’s frozen “Orphan” embryos: A medical, legal and ethical determine (1985 – 86) 24 J. Fam. Law 27. 62 Inmaculada de Melo-Martin, “ Ethics and Uncertainty…note 51 above. 63 “In vitro fertilization in Africa:Nigeria”. http://invitrofertilization.blogspot.com/2008/02/ivf-in-africa-nigeria.html (accessed 25 Oct. 11). 35 The Need for Assisted Reproductive Technology Law in Nigeria In Germany, there is an “Embryo Protection Law” that effectively forbids destructive embryo research64 In March 2004, the Canadian Parliament enacted the ‘Assisted Human Reproduction Act’, a comprehensive piece of legislation that covers the whole field of assisted reproduction. The bill imposes a system of licensure for the creation, alteration or manipulation of in vitro embryos and provides for the creation of an ‘Assisted Human Reproduction Agency of Canada’ that will administer all the newly enacted regulations. These regulations include , among others, prohibitions of: all human cloning(both to produce children and for biomedical research); sex selection for non medical purposes; the creation of chimeras (for any reason)and hybrids for reproductive purposes; the creation of in vitro embryos for any purpose other than reproduction or ‘improving or providing instruction in assisted reproduction procedures; the maintenance of an in vitro embryo past 14 days of development; heritable genetic modification; commercial surrogacy contracts; and the buying and selling of gametes.65 In February 2004,the Italian Parliament enacted legislation that prohibits donation of sperm or eggs from third parties, limits in vitro fertilization techniques to cohabiting heterosexual couples, prohibits destructive experimentation on embryos, forbids the creation of more than three embryos at one time, and requires all embryos created to be transferred to the patient’s uterus. The Spanish report has been the basis for Law No. 35/1988 known as “Health: Assisted Reproduction Techniques”. The law lays down general principles for the application of these technologies that emphasize informed consent, patient data collection and confidentiality, fertilization of ova for the sole purpose of procreation, and the minimization of spare embryos. This legislation is one of the most detailed undertaken on the subject of assisted reproductive procedures. It covers artificial insemination, IVF and gamete intrafallopian transfer (GIFT).66 64 See The Transcripts of Presentation to the President’s Council on Bioethics by Spiro Simitis, available at www.bioethics.gov (accessed 25 Oct. 11). 65 See The Transcripts of Presentation to the President’s Council on Bioethics by Patricia Baird. available on www.bioethics.gov (accessed 25 Oct. 11). 66 See Comision Especial de Estudio dela Fecundacion “In Vitro” y la Insemination Artificial Humans [Special commission for the study of Human In-Vitro Fertilization and Artificial Insemination] Informe [Report] (1987). 36 University of Ibadan Law Journal The U.S. Congress enacted the Fertility Clinic Success Rate and Certification Act of 1992.67 This Act requires all infertility clinics that perform IVF services to communicate annually their pregnancy success rates to the Secretary of Health and Human Services. It also requires the identity of each embryo-laboratory working in association with the clinic. The Act also directs the Secretary to develop a model program for state certification of embryo laboratory working in association with the clinic. The Act also directs the secretary to develop a model programme for state certification of embryo laboratory accreditation programmes. In addition, it demands that the Secretary publish and disseminate data concerning pregnancy success rates and other related information. The Centre for Disease Control and Prevention is in charge of the development of the actual mechanisms for the implementation of the Act.68 The United Kingdom has the most comprehensive regulatory scheme; the pioneering Human Fertilization and Embryology Act of 1990.This Act has been reviewed by the 2008 Act with the main new elements of the Act being:  ensuring that the creation and use of all human embryos outside the body - whatever the process used in their creation - are subject to regulation  a ban on selecting the sex of offspring for social reasons  requiring that clinics take account of “the welfare of the child” when providing fertility treatment, and removing the previous requirement that they also take account of the child’s “need for a father”  allowing for the recognition of both partners in a same-sex relationship as legal parents of children conceived through the use of donated sperm, eggs or embryos  enabling people in same sex relationships and unmarried couples to apply for an order allowing for them to be treated as the parents of a child born using a surrogate  changing restrictions on the use of data collected by the HFEA to make it easier to conduct research using this information 67 See Fertility Clinic Success Rate and Certification Act of 1992 H.R. Rep. No 102-624 (1992): and U.S. Senate, Fertility Clinic Success Rate and Certification Act of 1992 S. Rep, No. 102-452 (1992). 68 See The Centres for Disease Control and Prevention, Assisted Reproductive Technology Success Rate in the United States: 1995 National Summary and Fertility Clinic Report (1997). 37 The Need for Assisted Reproductive Technology Law in Nigeria  Provisions clarifying the scope of legitimate embryo research activities, including regulation of ‘human admixed embryos’ (embryos combining both human and animal material). The main conclusions of these ART regulatory schemes are analogous, although there are areas of disagreement. For married or stable couples, all of the schemes conclude that artificial insemination and IVF are legitimate medical response to infertility but that informed consent is a precondition for treatment. They argue that some forms of embryo research, such as cloning, clearly are unacceptable. However, other forms of embryo research are permissible within the first fourteen days of development in Vitro, provided that ethics committees regulate and approve them. Commissioners also agree that governments should allow the donation of embryos. Similarly, the reports concur that governments should regularize the legal status of children conceived through the new reproductive technologies. They also emphasize the need to establish some form of national accreditation or licensing for assisted-reproduction clinics. In Nigeria, there is no legal regulation of ART despite the fact that the awareness about ART is increasing and Nigerians are benefitting from the technology. On a visit to some of the ART centres in Nigeria69, the writer discovered that the different centres are affiliated with different hospitals abroad based in different countries and each centre makes use of the guidelines/follow the procedures of the foreign hospitals they are affiliated to. This has brought about a situation in Nigeria where Nigerians have access to fertility treatment procedures of different countries without travelling out of their country. The writer is of the opinion that a situation as this resembles what is called “forum shopping” in law. This kind of situation is best explained with the aid of an illustration as follows: Mr. & Mrs. X have agreed to undergo the IVF birth method and they have a list of reputable IVF centres in Nigeria. Centre A has affiliation with a hospital in United Kingdom (UK), Centre B is affiliated to a hospital in Denmark, Centre C is affiliated to a hospital in America, The couple is 69 The writer visited Hope Valley Fertility Clinic Victoria Island, Lagos; Medical Art Center Ikeja, Lagos; Nordica Fertility CenterIkoyi,Lagos; Roding Medical Center Victoria Island,Lagos and she visited the website of Bridge Clinic at www.thebridgeclinic.com( accessed 25 Oct.11) 38 University of Ibadan Law Journal interested in having only male offspring (sex selection) and also want a set of sextuplets. Considering the fact that the UK 2008 law has placed a ban on sex selection, the couple would rather not visit a centre that has affiliation with UK. This kind of practice is not healthy for a developing country like Nigeria and it can be concluded that one of the factors responsible for this kind of practice is that ART and Infertility are not priority health issues hence the lack of government policy in this area of healthcare practice. Current Status of ART in Nigeria and other Developing Countries In Nigeria and other developing countries in sub-Saharan Africa, there is no state regulation of assisted reproductive technology (ART) even though we have several centres in Nigeria.70 ART practitioners in Nigeria and other developing African countries have a voluntary adherence to guidelines set by the American society of Reproductive Medicine, the British Human fertilisation and Embryology Authority or the equivalent body in France or Germany. Due to the interaction and collaboration of the ART centres in Africa with scientists in Europe, South Africa, Australia and America, the centres voluntarily abide with accepted guidelines from those countries. The centre in Harare, Zimbabwe has regular visits from top scientists coming in from the UK, Australia and the USA to guide it and update it on quality control, ethics and new advances. Most of the countries in Africa do not have national ethics committees. 70 See Oyebode.N, “Why Most Nigerian Men have low Sperm Count – Ashiru” Saturday Punch ( 2 May 2009) http://www.punchng.com/Articl.aspx?theartic=Art20090502125965 (accessed 25 Oct.11) . See generally: “Assisted reproduction answer to infertility” Sunnewsonline, (19 May 2009) Posted by Omo Franca,available at http://ivfbabiesnigeria.blogspot.com/2009/05/assisted-reproduction-answerto.html (accessed 25 Oct.11); Ajayi, “Why Nordica is offering free IVF treatment” (27 May 2009) Posted by Omo Franca, http://ivfbabiesnigeria.blogspot.com/2009/05/why-nordica-is-offering-freeivf.html (accessed 25 Oct. 11); “Ajabor wants law on regulation of IVF delivery” (25 Dec 2008)Posted by Omo Franca, http://ivfbabiesnigeria.blogspot.com/2008/12/ajabor-wants-lawon-regulation-of-ivf.html (accessed 25 Oct. 11); Ogundipe Sola, “IVF: Ajayi makes case for regulation in Nigeria” Vanguard 13 Dec, 2010 http://www.vanguardngr.com/2010/12/ivf-ajayi-makes-case-for-regulation-innigeria/ (accessed 25 Oct. 11). 39 The Need for Assisted Reproductive Technology Law in Nigeria In Nigeria, the various ART centres are self regulated, there is no national body that oversees the affairs of these centres. Considering the current status of ART in Nigeria, one may be tempted to think that the following reasons are contributing factors:  infertility treatment and ART are not priority health issues.  ignorance and lack of interest by politicians and health authorities.  apathy, inertia, lack of interest and commitment by professional peer bodies.  multi-ethnic and multi-religious composition of the population in the country makes it difficult to implement and regulate uniform ART practice guidelines.  ART is not recognised as a sub speciality of gynaecological practice. Hence no structured training for clinicians and embryologists exist for ART practice.  most ART practice are set up in non-governmental medical centres in the private sector, without proper supervision and licensing. Governmental intervention has never occurred in the running of ART centres in private hospitals/centres in the country. The writer is of the opinion that voluntary adherence to guidelines from different countries by the various ART centres is not the best for regulating ART in Nigeria bearing in mind the fact that Africa has more of the type of infertility that can be solved by ART procedures and ART awareness is increasing in the country. Also, Infertility should be seen and handled as a public health issue and not mainly as an individual or social issue in Nigeria. All ART practitioners should therefore come together and form a national body that would come out with a standard of practice suitable for the Nigerian Society and also create a supervisory body for the centres. This, the writer believes will go a long way in setting a good foundation for the future of ART practice in the country and even prevent a situation where quacks will hold themselves out as ART practitioners and commit atrocities that would scare the populace from having confidence in the technology and its practitioners. Conclusion ART has brought benefits to human existence in the areas of giving children to the infertile and hopes to stigmatised barren women. It has been noted that infertility causes major marital, family and social 40 University of Ibadan Law Journal disruptions in Africa and Africa has more of the type of infertility that can be solved by ART procedures than any other part of the world. However, notwithstanding this scientific feat, it has also been observed that nonregulation of ART may cause more harm than public good. Many countries in sub-Saharan Africa including Nigeria have no legal regulation for ART. Considering the fact that history teaches that it can be hard to stop a bad idea once it gathers momentum, there is therefore the need for constant and in-depth regulation of ART in Nigeria which must define and prescribe roles and status for the all the collaborators in the procreation effort. The rights and duties of physicians in the exercise must be clearly defined. Categories of persons which shall be entitled to fertility must be unambiguously stated. The Nigeria Government must recognise infertility as a public health issue requiring government attention. Infertility should be seen as an integral part of the health component of the country and should be incorporated into the existing health policy and services. Prevention, they say is better than Cure, therefore, the government should adopt strategies used in preventing more serious diseases at preventing the type of infertility prevalent in Nigeria and Africa. Federal agencies, professionals and consumer organisations, the scientific community, the healthcare community, other stakeholders should participate in the development of a National Public Health Plan for the prevention, detection and management of Infertility. A Public Health Symposium on Infertility should be organised where working groups will be formed and a draft national action plan will be made. The involvement of the Nigerian government in assisted reproduction should therefore include reduction in the cost of IVF delivery by subsidy probably through the National Health Insurance Scheme so as to enable the poor benefit from such service since infertility is a public health issue that affects both the poor and rich, prevention of indiscriminate springing up of fertility clinics, the control of standards for clinical procedures and the regulation of professional practice. 41