Over the weekend, I watched a movie titled Love is Goodness.
In this movie, a couple entered into a surrogacy agreement with a woman to carry a pregnancy to term for a fee of ₦3 million. Midway into the pregnancy, medical tests revealed a 50–50 chance that the child may be born with a deformity.
Following this discovery, the couple disappeared with no communication, no termination notice, no payment. The surrogate mother eventually gave birth and kept the child. It got me thinking.
Who breached the contract under Nigerian law?
Nigeria currently has no comprehensive federal legislation regulating surrogacy
As a result, surrogacy agreements operate within a legal grey area, often tested against public policy, morality, and child welfare considerations.
Assuming the agreement is valid, the Child’s Rights Act (CRA) tilts strongly in favour of the biological birth mother.
The discovery of a possible deformity does not amount to frustration of contract. Nigerian law requires an event that makes performance impossible, not merely uncertain or undesirable.
A 50–50 medical risk does not discharge contractual obligations—especially where no “healthy child” clause exists.
By disappearing without lawful termination or notice, the couple repudiated the contract by conduct, amounting to a clear breach under Nigerian contract principles.
Several provisions of the Child’s Rights Act 2003 are critical here:
Section 1 CRA
In every action concerning a child, the best interest of the child shall be the primary consideration.This overrides contractual intentions once child welfare is in issue.
Section 14 CRA: Every child has a right to parental care, protection, and maintenance. A party that abandons a child before birth cannot later insist on contractual benefits.
Section 15 CRA: A child has the right to dignity of the human person and must not be subjected to inhuman or degrading treatment.
Rejecting a child due to a perceived deformity raises serious dignity concerns.
Section 30 CRA (Prohibition of buying, selling, hiring, or otherwise dealing in children)
This section makes courts extremely reluctant to enforce agreements that resemble the commercial transfer of a child, thereby strengthening the legal standing of the woman who gave birth.
These provisions mean that once the couple abandoned the arrangement, the biological birth mother’s rights and the child’s welfare became paramount.
So what are the Legal Takeaways
The couple, not the surrogate mother, breached the contract.
Medical uncertainty does not excuse contractual abandonment.
Under the Child’s Rights Act, the woman who carried and delivered the child enjoys superior protection, especially where abandonment occurs
Surrogacy agreements in Nigeria remain subordinate to child welfare and public policy.
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