Ask whether a surrogacy agreement is enforceable in Nigeria and you will receive confident answers in both directions. Both are wrong, because the question is badly formed. These agreements are not one promise but a bundle of different kinds of promise, and the law treats the strands very differently.
The contractual layer
Much of a surrogacy agreement is ordinary contract: payment and reimbursement terms, confidentiality, the allocation of medical costs, insurance obligations, dispute resolution clauses. Absent a statute prohibiting the arrangement, there is a solid argument that these terms are analysable under general contract principles, offer, acceptance, consideration, intention, and the public-policy doctrines that police all contracts.
Public policy is the live question in this layer. Because no Nigerian statute settles the status of surrogacy compensation, careful drafters characterise payments precisely and conservatively, and structure the agreement so that the commercial strand can, if necessary, stand apart from the strands a court might decline to enforce. Severability here is not boilerplate; it is architecture.
The parentage layer
Promises about whose child this is stand on different ground. Parentage is a legal status, not a private commodity, and parties cannot simply contract it into existence. What the agreement does in this layer is evidentiary and procedural: it records intention before conception, structures the consents, and prepares the documentation on which registration and, where needed, judicial recognition will rest. That record is enormously valuable, but it persuades; it does not command.
In the commercial layer the agreement is a set of obligations. In the parentage layer it is a body of evidence. Drafting fails when it confuses the two.
The custody layer
The hardest case is the one everyone fears: a surrogate who, after delivery, does not wish to hand over the child, or intending parents who no longer wish to receive one. Here the answer is uncomfortable but clear: no clause is self-executing. Any Nigerian court confronted with a dispute over a child applies the best interests of the child as the paramount consideration. The agreement will be read, weighed, and often respected, courts are not indifferent to solemn recorded intention, pre-conception planning and the genetic position, but it will be weighed within the best-interests analysis, not above it.
The drafting response is to make the agreed outcome and the child’s interests point in the same direction: demonstrate the intending parents’ preparation and capacity, ensure the surrogate’s decision was informed, advised and uncoerced, and keep a clean record of care and conduct throughout. The best surrogacy agreements are built like cases, because one day they may have to be argued as one.
What this means in practice
- Treat commercial terms as contract: draft them tightly, characterise money carefully, sever aggressively.
- Treat parentage terms as evidence: build the record a registrar or judge will one day read.
- Treat custody terms as advocacy in advance: align the agreement with the best-interests standard rather than pretending to override it.
- Never promise a client "enforceability" in the singular. Explain the layers, clients handle honest complexity far better than confident error.
For what belongs inside the agreement itself, see the companion note, What Intending Parents Should Put in Writing.