Sunday 7 June 2020
INVITRO FERTILIZATION (IVF): THE ILLEGAL PARENTING PARAPHERNALIA THAT WILL SOON PUT MANY DOCTORS IN JAIL.
Invitro fertilization and embryo transfer (IVF-ET) is an artificial medical manipulation of human gametes (sperm cell and egg) to produce an embryo that would be implanted in the womb of a prospective mother for onward maturation into a full baby in an obviously recognised pregnancy. This baby is eventually born to the couple that procured the IVF-ET as its "natural child" while the couple becomes the "natural parents". The child is therefore presumed "to be born in lawful wedlock" of the couple.
The issue of birth in lawful wedlock of IVF-ET children become extremely risky in situations of "third party assisted conception". In this mode of birth, the reproductive process involves another person providing sperm cell or egg or embryo, or another woman providing her womb as a carrier of transferred embryos, so that a barren couple can have a child. This is a situation where the gametes used for the IVF-ET were not from the procuring couple. In this case, the egg or the sperm cell used for the IVF-ET were obtained from third parties who are paid to donate the gametes. In this case, the child that would be born by the prospective mother would not bear any genetic resemblance to the mother or the husband.
This couple is only the presumed natural parents of the child only to the extent that the child was born by the couple within "lawful wedlock". This presumption of natural parenthood is highly rebbutable for the immutable genetic reasons. Moreover, the presumption of lawful wedlock in IVF-ET is in itself also rebuttable. Birth in lawful wedlock presupposes that a man copulates with the wife in their absolute privacy and come forth with a child. It is doubtful if the intrusion of an artificial medical manipulation in the natural coital works of a couple, especially with respect to the use of foreign gametes alien to the mother, could qualify as lawful wedlock as envisaged in the original meaning of that term.
It is trite that generally, the natural parents of a child are not just the presumed parents of the child as born within wedlock, but the biological parents whose genetics are embedded in the child. There are a retinue of Supreme Court decisions on this. With the rebbutable presumptions of natural parenthood of a child born within lawful wedlock, the natural father of an IVF-ET child could readily assert ownership of the child even after giving consent for his sperm cell to be used by the IVF-ET couple. He could litigate and assume custody of the child. The child can even seek for his natural parents when he grows up. The child can even litigate the IVF-ET couple and claim damages. This is because IVF-ET simpliciter does not sever parent-child relationship no matter the level of consent given by the donors of the gametes. Once it is his gene, it is his child.
In Nigeria, there is no law on IVF-ET at the moment. The National Health Act spoke about body fluids and tissues, but it is absolutely quiet with regard to IVF-ET and parental rights of an IVF-ET child. There is no law that provides that the IVF-ET couple, irrespective of the genetics of the child, are the natural or adoptive parents of the child. None. The IVF-ET couple who use donor gametes are therefore at great risks in Nigeria. They are not protected at all. They are at best, mere guardians of the child they carried for nine months. They are not even guardians ad litem. They are mere guardians. There is no amounts of consents by the IVF-ET couple and their donors that can transfer parenthood from the donors to the IVF-ET couple. The consenting procurators can transfer their personal rights to one another, but they cannot by a mere agreement amongst them, transfer the childhood rights of the child to one another without an enabling law. This is because the child may have his own interests when he grows up different from the interests of the IVF-ET couple and he has every legal right to assert his position. In addition, the relatives of the couple can validly deny the child of intestate inheritance rights in the property of the "guardian" couple.
The major problem that bedevils the IVF-ET couple is not as much with the recanting donors as it is with the possible erratic actions of the child who is the product of the IVF-ET. The donor could only seek for permanent custody of the child in the long run, thereby denying the IVF-ET couple of the product of their long suffering. This will be insignificant when compared to the havoc the IVF-ET child could wreak. An IVF-ET child could sue anybody and everybody, and subsequently align with his natural parents. The child could sue the doctor who performed the IVF for a lot of reasons which are too numerous to mention. The child could claim millions in damages. This becomes even more disastrous if the IVF hospital could not provide all the necessary information as to the identity of his natural parents. The child could also sue the IVF-ET couple for reasons best known to him. He could also sue his biological parents for other reasons.
In Nigeria, the only way provided in the law for the lawful and definite severance of parent-child relationship and ties is through statutory adoption. This is provided by the Adoption Act of Nigeria, Adoption laws of the different states, and the Child Rights Act as may have been domesticated by the states. Any state that operates both Adoption Law and Child Rights Law will have a better complement of laws than a state that operates only Adoption Laws as found in some parts of Northern Nigerian.The Child Rights Laws did a lot of improvements on the Adoption Laws in that any child could be adopted whether or not the child is an abandoned, once the child is neither married nor up to 18 years. The beauty of adoption is that it separates a child completely from his natural parents and hands him over to his adoptive parents as his new legal parents. After adoption, the child cannot inherit the property of his natural intestate parents. He is only entitled to the property of his intestate adoptive parents. The child cannot marry a child of his new parents as adoption creates consanguinity between the adopted child and the relatives of the new parents. In fact, adoption appears to enable the adopted child to marry his biological sister as all blood relationship of the adopted child appears to have been completely severed from his biological siblings and substituted with those of his adoptive siblings.
In conclusion, IVF-ET parents who used donor gametes are not the natural parents of their child. They are mere guardians waiting in perpetual trepidation for the donor or the child to revolt. The IVF-ET couple have no protection under the laws of Nigeria unless they employ the lifeline offered by the Child's Rights Laws by proceeding to adopt those children after delivery. This will ameliorate the risk on the third party offspring who may be legitimately denied access to the property of their intestate IVF parents by the siblings of the IVF couples. The medical practitioners who assist in the IVF-ET stand a major danger from the IVF-ET children in this era of medical litigations as those children can make so much money by suing them for a myriad of reasons ranging from forced parenting to identify issues. These identity litigations have already started in the developed countries. Those doctors who cannot pay the multiple and gargantuan damages may find themselves cooling off in jail. The solutions to this danger is simple. The merchants do not need to wait till the Supreme Court of Nigeria drops an unsavory Verdict before they wake up. A clause, just one clause, in the Child's Rights Law, will lay this danger to rest. It is a Clause of fourteen words. And the IVF-ET merchants could rest.
Ikenna Fredrick Awkadigwe
©2018
awkadigweikenna@gmail.com
08039555380
Consultant Obstetrician and Gynaecologist, Lawyer, Corp of Nigerian Commissionaire. MBBS NIG, LLB NIG, MWACS, FWACS, SC
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Thanks for the informative write up. I quite agree with the issues you raised, but I don't think most of those areas of concern will arise in our society except in a case of surrogate mother.
ReplyDeleteAfricans are not like Westerners, we have rich cultural and moral values that checkmate those crazy behaviours that are termed as Rights in other places.
The Supreme Court of Nigeria has refused to award paternity to non-biological parents of the child in many decided cases. This has been exemplified in the case of (Okonkwo v. Okagbue 1994, 301). In this case that emanated from Ibo tribe in the present Anambra State of Nigeria, that is situate within the South-East geo-political zone of Nigeria, two sisters of the deceased ‘married’ a wife for the deceased, more than thirty years after the death of the deceased. The ‘wife’ had several children who bore the name of the deceased as their surname and paraded themselves as the children of the deceased. The plaintiff for himself and on behalf of four (4) other sons of the deceased filed a suit at the High Court contending inter alia that the children begotten were not the children of their late father and were not entitled to inherit from the estate of their late father. The plaintiff lost the suit at the High Court and the Court of Appeal. He further appealed to the Supreme Court where the appeal was allowed. The Supreme Court allowed the appeal, again, for the reason that the children begotten by the ‘wife’ of a man who was dead more than thirty years before the marriage were not and could not have been the biological children of the dead man, and that the native law and custom that supports such award of paternity is repugnant to natural justice, equity and good conscience. The Supreme Court Per Ogundare, J.S.C at p. 344 was of the view that it was unfair for the children not to be made to know who their biological father(s) are/were. In the words of the learned Justice of the Supreme Court, “it is in the interest of the children to let them know who their true fathers are(were) and not to allow them to live for the rest of their lives under the myth, that they are the children of a man who died many decades before they were born.
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