Assisted Reproductive Technology

Chapter 11
Assisted Reproductive Technology

Abdulwasiu Ojo Akorede Yusuff


The incidence of infertility in any given society where children are immensely treasured is a substantial source of anxiety among concerned families and individuals. Prior to the increase and spread of medical knowledge about infertility in some communities, some affected families or individuals interpreted and dealt with infertility as a spiritual rather than medical problem. Child fostering and adoption, which affords infertile couples the opportunity to become parents in most Western countries, are not common and easily embraced in Nigeria. Even when resort is had to adoption or child fostering, some infertile couples in Nigeria still desire to have a biologically or genetically related child. Assisted reproductive technology (ART), therefore, holds considerable attraction to most infertile couples in Nigeria. With increased understanding of the causes of infertility and the methods of addressing it, more people are taking advantage of new medical procedures for assisted conception. Prominent among these are artificial insemination, in vitro fertilization and surrogacy arrangements. These procedures require high medical expertise and care particularly because of the risks and side effects involved, as well as their invasive nature. In addition, many socio-legal issues are raised by the availability of ART and these issues significantly engage the traditional, cultural, social and legal conception of the Nigerian family system. Thus, the growth of ART centres in Nigeria must be monitored and their operations defined and standardized while the complex legal issues that may arise in the course of accessing ART are given due attention.

Accordingly, this chapter has two main objectives. First, it examines socio-legal issues that make legal regulation of ART in Nigeria imperative. Second, the chapter develops a framework for administrative and legal regulation of ART in Nigeria. This latter objective is particularly important because of the socio-cultural diversity in Nigeria which affects the reaching of consensus in key areas. Because reproduction is central to some people’s sense of fulfilment, coupled with the strong desire of some infertile couples to have a biologically related child at any cost, the primary role of regulation should be the creation of an environment in which a threshold of tolerance and legally acceptable practice is established. ART is still evolving in Nigeria and largely involves collaboration between Nigerian practitioners and foreign partners for the provision of reproductive services, as well as international exchange or transfer of reproductive materials, including sperm, eggs and embryos. Thus, abuse or exploitation, which would follow in the absence of regulation, must be eradicated. Against this background, this chapter will formulate a specific but flexible framework for the procedural and substantive regulation of ART in Nigeria.

Assisted Reproductive Technology (ART) in Nigeria

Fertility ‘is the human ability to impregnate and or conceive a baby through heterosexual intercourse’ leading to the birth of a child.1 All things being equal, the majority of adult males and females that engage in regular unprotected sexual intercourse will achieve pregnancy after a while. Infertility, especially in men, should not, however, be conflated with impotency. A man may be infertile (unable to procreate) and yet be capable of having normal sexual relations or intercourse with his partner.2 Consequently, infertility is a disorder of the reproductive system which impairs men and women’s ability to achieve pregnancy or conceive children.3 According to Bernard Dickens:

Infertility includes infecundity, meaning inability to conceive or 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

Medical science and technology have gone a long way in devising methods to address the problem of infertility. The methods generally involving handling of sperm and eggs in the clinical setting are collectively referred to as Assisted Reproductive Technologies (ART). ART is growing at a fast pace in Nigeria.5 Options available in the country include artificial insemination, in vitro fertilization and surrogacy arrangements. Among these, in vitro fertilization (IVF) is by far the most common, and in the near future will become a routine procedure in Nigeria as it is in some parts of North America and Europe.6

Highlights of Available ART in Nigeria

When couples or individuals visit fertility clinics for assisted reproduction, fertility experts usually obtain and evaluate their medical histories, conduct physical examinations and carry out a series of laboratory tests and investigations. These may reveal the underlying cause or causes of their infertility. For instance, there may be hormonal imbalance, structural problems or disease affecting the organs of the reproductive system. There may also be problems affecting the quantity and quality of semen in men, or problems around the production and quality of eggs in women.7 Once the cause or causes of infertility are ascertained, fertility experts will determine appropriate treatment options ranging from counselling, for instance on timing and frequency of sexual intercourse, and minor surgery on affected organs of the reproductive system to the prescription of fertility drugs. Treatment options may also extend to a range of assisted reproductive technology methods which are usually invasive and more expensive. The following subsections briefly examine the assisted reproduction options that are available in Nigeria.8

Artificial Insemination (AI)

Assisted or artificial insemination involves the collection of sperm from a man and its introduction into the uterus of a woman for the purpose of inducing conception. It can be used to overcome both female infertility problems (where the cervix or the fallopian tubes pose barriers to normal insemination) and male infertility problems (by concentrating sperm before insemination).

The sperm for assisted insemination may be procured, in the case of unmarried couples, from the partner of the woman to be inseminated (assisted insemination by partner: AIP) and, in the case of married couples, from the husband (assisted insemination by husband: AIH) or, in other cases, from an anonymous donor (assisted insemination by donor: AID or donor insemination: DI). Assisted insemination is more or less a simple procedure and might be performed without the help of medical practitioners, unless the male partner has low sperm count or low sperm motility. It is about the most widely accepted and least contentious method of assisted reproduction.9

In Vitro Fertilization (IVF)

IVF is a process of manually combining female egg and male sperm in a laboratory to achieve fertilization/conception with the ultimate aim of placing the embryo in a woman’s uterus to achieve pregnancy. It is a high technology procedure and innovation in that area is fast paced, especially in industrialized countries. As such, a high standard of professional competence and integrity is required of practitioners in this specialist area. IVF involves the use of expensive and specialized medical equipment that might not be readily available to general practitioners in Nigeria.10 There are basically five steps involved in the standard IVF procedure.11 These are:

1. Stimulating and monitoring the development of healthy egg(s) in the ovaries. This step usually involves the application of fertility medications to induce ovulation, controlling the timing of the ripening of the egg(s) and increasing the chances of collecting multiple eggs during one of the woman’s cycles.12

2. Collection of the eggs. The eggs are retrieved through minor surgery during which sedation and local anaesthesia are given to reduce or remove discomfort that the woman might experience in the process. The eggs may also be retrieved through a process called laparoscopy which is not surgical but is nevertheless invasive.

3. Sperm is obtained from the husband or partner of the woman undergoing the procedure or from a donor who may or may not be known to her. The sperm is thereafter prepared for mixing with the eggs.

4. The eggs and sperm are combined or inseminated in the laboratory in an environment appropriate for fertilization and early embryo growth.

5. Embryos that are formed following the steps above are subsequently transferred into the woman’s uterus where implantation and pregnancy are expected.13

In vitro fertilization is quite expensive and is fraught with risks and imperfections and thus raises safety concerns both for the woman undergoing the procedure as well as the child born through the procedure. In addition, the success rate for IVF, measured by the live birth rate after a cycle rather than pregnancy rate during the procedure, is well known to be low.

Surrogacy Arrangement

This is an arrangement whereby a woman who cannot conceive or carry pregnancy to term commissions another woman to carry the pregnancy on her behalf. This other woman is usually called the surrogate mother or the carrier. Surrogate pregnancy may be established in a number of ways. The surrogate mother may be fertilized with the commissioning man’s sperm either as a result of sexual intercourse with the man, assisted insemination or in vitro fertilization. Thus, she not only carries the baby but also has a genetic link to it. Another way of establishing surrogate pregnancy is where the commissioning couple provides sperm and ovum to produce a child that is genetically related to both of them although the pregnancy is carried by another woman.14 A third possibility is where the commissioning couple secures donor sperm and egg (or an embryo) that are subsequently fertilized and implanted in the surrogate mother. This arrangement is commonly known as ‘womb leasing’.15 Surrogacy alleviates childlessness where a woman is unable to have a child because she suffers from severe pelvic disease, has no uterus, and experiences repeated miscarriages, or where pregnancy is medically undesirable. Surrogacy arrangement might also be resorted to where an otherwise fertile woman is reluctant to go through the burden and risks of pregnancy.16

Other Methods

In addition to the methods highlighted above, other procedures include gamete intra-fallopian transfer (GIFT), zygote intra-fallopian transfer (ZIFT) and intra-cytoplasmic sperm injection (ICSI), which are variants of IVF. Embryo splitting and embryo sharing or donation are also methods of assisted reproduction. Embryo splitting occurs where the original embryo created through IVF is divided into two or more while it is still at the totipotent stage. In the case of embryo sharing or donation, a woman undergoing IVF procedure shares her eggs or embryo with another woman who is also to be treated but would not like to go through the egg retrieval process. The sharing or donation is done under the arrangement that the other woman would bear the cost or meet a substantial part of the IVF treatment of the sharing woman.17 Reproductive cloning and stem cell therapy are medical technologies still undergoing research in many parts of North America and Europe and are largely regarded as promising ART procedures. Embryo research is, however, ongoing in many parts of the world where it is considered as necessary and incidental to assisted reproductive technology. According to a fertility expert in Nigeria, nearly all the methods highlighted above are available and currently used in Nigeria.18 Embryo freezing is available in two centres in Nigeria; oocyte donation is available in four centres; while one centre in Lagos has practised surrogate motherhood.19

Justification for Legal Regulation of ART in Nigeria

With regard to legislation in the area of assisted reproductive technology, Bernard Dickens of the University of Toronto has been quoted to have observed that not all the issues need to be determined by legislation because common law evolution through case-by-case judgments may be adequate to deal with many issues that are bound to arise.20 Nevertheless, as he further observed, ‘many issues arising in the practice of artificial reproduction are not amenable to systematic or consistent accommodation by a legal system dependent only upon declaratory … judgment of the courts’.21 Furthermore, the relevant issues ‘are of such social significance, and potentially of such major impact …, that a responsible society must address them through specific, informed and perceptive legislation’.22 However, it is open to question whether an area such as human reproduction, which may be protected by constitutional rights to privacy, self-determination and reproductive freedom, can be subjected to the state’s intrusion through legislation. The issue whether there is a right to reproduce which may not be curtailed or in any manner disturbed directly or indirectly by the state requires critical examination;23 but it should be noted that states are permitted to derogate from some recognized constitutional rights where certain interests are involved.24 For example the 1999 Constitution of Nigeria provides that nothing in sections 37, 38, 39, 40 and 41 of the Constitution shall invalidate any law that is reasonably justifiable in a democratic society ‘in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons’.25 This section therefore examines whether there is any basis or justification for statutory intervention directed at regulating assisted reproductive technology in Nigeria in accordance with the 1999 Constitution.

ART and Safety Implications

Artificial insemination (AI) is, deceptively, the most simple of all options to assist infertile couples to conceive. It is a low technology procedure and may be performed outside a clinical setting with simple tools. However, the procedure is slightly invasive and requires due care and proper handling of the sperm with which the woman will be inseminated. The sperm must also be of the right quantity and quality for it to make a positive difference in the attempt to successfully inseminate the receiving woman. Timing of the insemination to coincide with the fertile period of the woman is also important as well as the avoidance of contamination and infection in the process of insemination. Aside from these issues, AI is not particularly risky. It does not require invasive surgery and does not expose the woman being inseminated to possible risks or side effects of anaesthesia, which might be used in a clinical setting. Similarly, a surrogacy arrangement, where the surrogate mother is to be artificially inseminated with the sperm of the husband or male partner of the commissioning couple, is not particularly risky though subsequent care and management of potential pregnancy would require normal professional involvement. To the extent that surrogate conception or birth is initiated or achieved through in vitro fertilization, special considerations which apply to IVF equally apply to surrogacy arrangements.

In vitro fertilization technique or procedure has been around for some time and has been significantly improved in ways that enhance its efficiency and address some ethical concerns raised by the technique.26 In spite of this, the technique, even at its most basic level, is a high technology procedure that should not be experimented with by non-experts or ill equipped practitioners. Indeed, in Western countries with the required expertise, technology and laboratories, IVF in particular, and ART generally, are still fraught with imperfections and risks. Success rates, measured in the rate of live births per cycle of IVF rather than rate of attaining pregnancy, are low, as the process is affected by a number of factors including characteristics of patients undergoing the procedure, age and egg quality, as well as treatment competence of the providing clinic.27

Each step of the IVF process poses some risks to ovum donors and potential mothers. For example, risks are associated with inducement of ovulation and egg retrieval. This includes the risk of hyperstimulation where the ovaries become swollen and painful. Ovarian Hyperstimulation Syndrome may also involve mild side effects such as nausea, vomiting, lack of appetite or more severe side effects like abdominal pain, urinary dysfunction, stroke, shortness of breath and weight gain.28 There are also the possibilities of ovarian cysts; exposure to risks and complications typical of anaesthesia; damage to uterus, bladder or a blood vessel which may require surgery to repair; risk of ectopic pregnancy if the embryo fails to implant in the uterus; and the possibility of higher than average rate of embryo loss or spontaneous abortion.29

There are other safety concerns due to multiple pregnancies common in assisted reproduction procedures and its attendant problems.30 The possibility of the mother suffering heart failure increases significantly with high-order multiple pregnancies, plus the fact that multiple pregnancies are usually delivered by caesarean section with increased possibility of uncontrollable blood loss and ultimately, hysterectomy.31 There are risks to the unborn child, including premature birth, cerebral palsy and an increased incidence of chromosomal abnormality (trisomy) and so on.32 Other risks include low birth weight, perinatal mortality and increased likelihood of major birth defects.33

The individual’s right to procreate, as earlier observed, may be seen as a fundamental right that should ideally be free from governmental interference. In light of the foregoing, however, there exists a compelling state interest to protect a woman from the risks of assisted reproductive technology. Equally, the state has an interest in protecting foetuses from the morbidities and other devastating injuries that may result from ART or complications arising from the procedure. Although healthcare is not fully funded by the state in Nigeria, the society and the state bear some direct and indirect costs of childbirth and assisted reproductive births. Assisted reproduction is without doubt a matter of public health which can only be neglected or ignored at the peril of members of the society. Therefore, a clear statutory regulatory regime is needed to ensure safety and protect the best interests of those involved. In democratic societies like ours, individuals are not free to choose a path of self-harm and the state is justified in regulating the bounds within which individuals may exercise their constitutionally recognized rights.34

ART further involves significant emotional, physical and financial commitments on the part of those undergoing it. There is also the possibility of psychological stress or trauma if the procedure is not successful even when repeated. Though counselling is universally recognized as an integral part of the ART process, it is doubtful whether many service providers in Nigeria lay emphasis on it and adequately prepare prospective patients for the procedure. Many who seek access to ART services, mostly women made vulnerable by the unpleasant psychological and social consequences of infertility, are neither aware nor properly sensitized to these facts. Unrealized expectations and dashed hopes are thus part of the experiences of those who eagerly approach service providers induced by exaggerated report of success rates. However, it might be easier to grapple with broken hopes than to cope with physical injuries and other damages to individuals and resulting offspring when the ART process takes a wrong turn. It is therefore proper and justifiable, all things considered, that assisted reproductive technology is statutorily regulated in Nigeria. When attempts to assist infertile couples to reproduce takes a wrong turn, legal redress or compensation for those at the receiving end of the mishap becomes a relevant issue. The extent to which the existing system of law in Nigeria can address this situation is therefore relevant for consideration.

Addressing Injuries and Damages Resulting from ART Services

Where an ART service provider falls short of attaining the standard or expected level of professional competence and the conduct results in avoidable damages or injury to the patient, there is an apparent cause of action in negligence. Thus, if a service provider took an unjustifiable risk, failed to adequately inform patients of potential and known side effects, did not possess or failed to apply the proper level of skill and professional ability in the discharge of his/her duty, he or she faces the risk of a lawsuit in battery, negligence or gross negligence. Centres or clinics that provide ART services without the required expertise, personnel, technical materials or equipment are therefore at risk of a lawsuit. However, while it is clear that patients who suffer from negligently performed ART procedures are entitled to seek redress, it is less clear whether the child born through the procedure also has a legal cause of action against service providers.

The prospect of legal claims instituted by or for babies and minors born with disabilities arising from ART procedures is by no means straightforward. At the rudimentary stage of artificial donor insemination, some practitioners devised a system of ‘disclaimers’ or ‘exclusion from liability clauses’ meant to protect them from adverse claims brought by those who suffered in the process of assisted reproduction. One of such clauses cited by an author reads:

We release Dr … from any and all liability and responsibility of any nature whatsoever which may result from complications of pregnancy, childbirth or delivery or from the birth of any infant or infants abnormal in any respect, or from the heredity or hereditary tendencies of such issue, or from other adverse consequences which may arise in connection with or as a result of the artificial insemination herein authorized … (sic).35

Though this clause relates specifically to the procedure of artificial insemination by donor, it is arguably applicable to IVF or surrogacy, which often relies on donor gametes as well. The question then is whether such a clause will be of any use to practitioners who fall below the level of competence expected of practitioners in ART practice. There have been significant technological and procedural advances in the practice of ART, especially IVF, most of which are directed at improving efficiency, increasing the success rates, and achieving significant reduction in potential risks and damages that may occur to donors, women undergoing the procedure and the resulting embryo or children. For example, certain procedures for prenatal testing for genetic disorders have been developed and these include amniocentesis, fetoscopy, chorionic villus sampling, cordocentesis, pre-implantation diagnosis and use of foetal cells in the maternal serum.36

The increasing importance of genetic diseases37 has been followed by significant increase in knowledge about such diseases, an ever-growing technology for coping with them and changes in attitudes towards abortion and family planning.38 One of the commonest investigatory procedures for prenatal genetic testing is pre-implantation diagnosis (PID) or pre-implantation genetic diagnosis (PGD). Presently, prenatal diagnosis is normally done for pregnant women whose offspring are known to be at risk for a serious disorder. The largest group are pregnant women who have reached an age (35 and above) at which risk of a chromosomal disorder has become high enough to justify the procedure; the second largest group are couples who have a near relative with a neural tube defect or couples with a family history, or results of screening that indicate an increased risk for a serious genetic disorder.39

In view of the state of technology and practice in this area, the question is whether physicians are obligated to test and inform individuals about the availability of genetic tests or prenatal screening and whether failure to do so might attract a malpractice or negligence action.40 Genetic counselling, the process of ascertaining what genetic diseases potential parents are at risk of transmitting to their babies, and informing them of available choices,41 has become an important part of reproductive planning for many individuals. Such individuals prefer to make childbearing decisions on the basis of maximum available information in order to increase their chances of having a ‘perfect’ child, even if aborting some affected foetuses along the way is necessary to achieve that end.42

In this context, genetic counselling provides greater information and participation for couples who wish to take advantage of IVF or surrogacy procedure and to avoid its risks; it also allows them time for reflection so that they can make an informed decision. Where a physician fails to perform or negligently performs a test or medical intervention which results in harm to the foetus (in the nature of deformity or disability), an action for prenatal injury may lie against the physician. Similarly where the prospective parents suffer harm resulting from conducts such as an incorrect genetic diagnosis which necessitates an abortion of a healthy foetus, a malpractice action may also lie against the physician.43 In some cases, however, prospective parents could allege that the physician’s negligence in genetic testing or genetic counselling precluded an informed decision about whether to have a child, such that conception would have been avoided or the pregnancy terminated had they been properly advised or tested. The action of the parents in such instances is usually termed a ‘wrongful birth’ claim while that of the child born with genetic defect or disorder is termed a ‘wrongful life’ claim.44 By a wrongful life claim, the child born with defect contends that the defendant physician negligently failed to inform the child’s parents of the risk of bearing an infant with a disability, and hence prevented the parents from choosing to avoid the child’s birth.45 Wrongful birth claims are not as controversial as wrongful life suits; while the former is recognized and may succeed in some Western countries, for example Canada, the latter does not seem to have such a chance.46

In this scenario the relevant question for the law to settle is whether an exemption clause, a sort of ‘caveat emptor’ or a ‘disclaimer’, would be allowed to physicians practising in this admittedly technical and scientific area where results, regardless of the expertise applied, are still largely unpredictable. A clear cause of action must be spelt out to afford a reasonable measure of protection to consumers of assisted reproductive technology who suffer physical, emotional or other injuries due to provable lapses on the part of service providers.

It is therefore imperative that a reasonably high standard of competence is required of clinics or individuals who offer ART services in Nigeria. As this field is a fertile ground for litigation, it is important that the law defines certain parameters for practitioners. Prospective parents may be able to obtain damages in the particular case of incompetence or negligent conduct in the course of the ART procedure, for instance, for injuries or harm resulting from failure to conduct indicated prenatal testing, genetic or otherwise, or for other preventable harm. Parents may also be able to obtain damages for harm to their children where the harm could have been prevented or treated in vivo in a way that potentially would have eliminated the harm or minimized it.

Courts in Nigeria may, however, face a dilemma with respect to ‘wrongful life’ claims. Apart from the fact that abortion is not generally or liberally available in the country, judicial recognition of such a claim will require the court to determine that the child had an interest in avoiding its birth. In other words, that it would have been best for it not to have been born. This is not a claim that many courts, mostly on public policy grounds, are prepared to recognize. As one court puts it:

Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence.47

Another compelling public policy reason that militates against recognition of wrongful life claims was clearly expressed by the court in Smith v Cote:48

Legal recognition that a disabled life is an injury would harm the interests of those most directly concerned, the handicapped … Furthermore, society often views disabled persons as burdensome misfits. Recent legislation … reflects a slow change in these attitudes. This change evidences a growing public awareness that the handicapped can be valuable and productive members of society. To characterize the life of a disabled person as an injury would denigrate both this new awareness and the handicapped themselves.49

This reasoning is sound and will likely be followed by Nigerian courts; nevertheless, substantial damages may still be awarded against practitioners of ART in Nigeria who fail to alert their minds to the potential safety concerns involved in the procedures resulting in preventable injuries to those seeking their services.

As demonstrated in this section the field of ART is a fertile minefield for litigation. Even where there is resort to litigation, the stark reality is that traditional family law and legal mechanisms such as breach of contract and tort actions do not readily lend themselves to ART and may in fact be inappropriate in that context. The reasons are not farfetched: ‘the medical standard of care is a moving target in part because of the rapidly evolving science and technology surrounding ARTs’.50 This makes it difficult to assess the ideal medical standard of care. Damages are also difficult to calculate in the ART context. For instance, how will damages be calculated where a couple using ART has quadruplets though they wanted one baby without the risks of multiple birth, or where the embryo is lost, wrongly switched during transfer or born deformed? Having specific statute in this regard will be a step in the right direction. Legislation is justified because it will provide minimum standards to protect the health and safety of women, men and children using ART techniques51 as well as constitute a guide to the judiciary on how to handle myriads of difficult and complex issues that may arise and which cannot be resolved using existing precedents.

Potential for Abuse and other Ethical Concerns

Technological advances in ART designed to reduce risks, eliminate some of the complaints against it and adapt it to meet ever increasing needs of infertile individuals have actually led to further concerns in this area. Concerns have been raised on the legal and moral status of gametes and the human embryo handled in the course of ART procedures as well as the issue of commodification of products and services of the human body. These concerns, among others which are discussed below, underscore the need to have legislation addressing the provision of ART services in Nigeria.

Ethically contentious use of prenatal genetic testing in ART

One of the key concerns has been how to set proper boundaries for the use of prenatal genetic testing methods especially the technique of pre-implantation genetic diagnosis (PGD). The risks attached to multiple pregnancies and transmission of genetic disorders to the resulting child as consequences of the ART/IVF procedure have been reduced significantly through the use of PGD technique. Prenatal genetic diagnosis will determine not only the possibility of bearing a child affected with a genetic disorder, but also whether a foetus suffers from a serious genetic disease, thus providing both pre-conception and post-conception information. If the information provided is negative, the birth of a baby with a defective medical condition can be avoided. This also means individual foetuses in a multiple conception can be tested and only those revealed to carry a defective genetic trait would be aborted. The PGD technique is also used to determine the sex of foetuses and helps in avoiding genetic disorders that are sex linked. A baby of a particular sex known to carry the disorder will be aborted if diagnosis indicates that the baby carries the trait.52 Apart from increased incidence of abortion which the technique of PGD is believed to encourage, controversies have also trailed the opportunity to pre-select the sex of a baby to be born to prospective parents. According to the Canadian Guidelines for Prenatal Diagnosis, ‘determination of sex for non-medical reasons is not considered to be appropriate’ and geneticists find the idea of ‘doing prenatal diagnosis with intent to abort a fetus of the unwanted sex rebarbative’.53

Supporters of PGD for sex selection argue, however, that the technique would allow parents more time to plan for their baby’s arrival since they would know beforehand the sex of the baby they are expecting. The parents would also be able to avoid giving birth to a genetically affected child in the case of sex-linked genetic disorder. The liberty to pre-select the sex of a baby is also seen as a matter of reproductive autonomy, except where specific harm could be proved.54 In contrast, opponents argue that sex selection sends out the message that it is morally acceptable to have a strong preference for one gender over the other, and that it would lead some women in some countries into coerced abortions. It is also argued that sex selection through PGD could be the thin end of the wedge that would not stop simply at discovering the sex of prospective babies but would also lead to positive demand for prenatal manipulation or genetic engineering to have babies with designer qualities such as blonde hair, blue eyes, ‘superior race’ and so on.55

Similarly, in a Report on Genetic Testing commissioned by the Ontario Law Reform Commission, it was observed that genetic technology raises lots of moral and ethical issues such as embryo selection, possible manipulation of germline cells, or genetic enhancement of persons thereby creating potential abuses of the new genome science.56 The report also noted that genetic discrimination has the potential to become a widespread phenomenon because:

The explosion of genetic knowledge and proliferation of genetic tests may lead people into seeing individuals as their genes, subdivide communities by their genetic characteristics, and promote the idea that genetic differences are real, biological and neutral grounds for different treatment; something akin to the pervasive harm of racism and sexism.57

All these concerns may not be traced to standard ART procedures but it may be said that they contributed to their growth. Opportunities for abuse and exploitation of the technique of prenatal genetic diagnosis are increasing; the challenge will be to protect people from ‘the dangers of unwise or unscrupulous application of genetic testing, without obstructing their beneficent applications towards our welfare’.58 Legislation offers the best avenue to ensure such protection.

Legal and moral status of embryos in ART

Assisted reproductive technology procedures usually require the handling and creation of embryos artificially through laboratory manipulation of the gametes, sperm and eggs. Often, embryos are created far in excess of what may be used in the ART procedures meaning that ultimately unused embryos would have to be discarded, frozen for future use, donated to other infertile couples for their own use or to the cause of advancement of science for research purposes or destroyed. It is noteworthy that some people consider the destruction of unused or excess gametes or embryos to be morally objectionable. People who hold this view arrogate human status or at least potential human status to gametes or embryos, since, according to them, human life begins at conception. Some, however, believe that the human embryo is entitled to profound respect that does not necessarily encompass the attribution to them of the full legal and moral rights attributable to persons.59 The Nigerian society, at this stage, must come to terms with this issue, defining, as precisely as possible, what status law accords gametes and embryos especially those created for or used in ART procedures. There is no law at present where this may be unequivocally inferred.

In the same vein, a related concern fuelled by ART is the conduct of research on embryos. There is a need to decide if, and to what extent, research on embryos would be permitted. The benefit or purpose of conducting research on embryos might be to increase knowledge of the human embryo at its early stages, to understand what may harm it or benefit it and to develop therapeutic means of treating in utero many diseases that would normally have awaited the birth of the baby. However, many embryos are destroyed in the research process. Destructive manipulation or experimentation in the name of research will ordinarily attract objection. Besides, there is concern that embryos that have been used for research or genetically modified might be transferred to a woman with all the potential risks this might pose to her, and perhaps, the human race. There is therefore a need for some restrictions on the extent to which research might be conducted on embryos, the ‘age’ or level of development of the embryos prior to research, and the length of time they might be kept after the research.

Other procedures of concern raised in this respect are broad and varied, including controversial procedures such as stem cell research, human reproductive cloning, trans-species fertilization (creation of human/animal chimeras), ectogenesis (developing an embryo in an artificial environment with the ultimate aim of producing a child by this method)60 and other procedures that are yet to come into the public domain. A society ought not allow the excesses of science under the guise of giving expression to scientific freedom. Scientific and technological advances might be desirable goals but not at the risk of fundamentally altering what it means to be human. Thus, it is important to legally define the boundaries of experimentation and other practices that would be permissible within the practice of ART. Without such legislation, the ART field in Nigeria would be open to all sorts of unethical and objectionable practices.

Commercialization of reproductive materials and services

Sperm and eggs used in the process of ART are sometimes obtained through donation or sale. Sperm donation is simple enough; egg donation on the other hand involves an invasive procedure comprising examination, testing, hormonal stimulation through drug injection and retrieval which may or not be through surgery. In Western countries where ART is more frequently used, donors of sperm and eggs are usually compensated financially. The compensation, allegedly for the pain and suffering rather than the gametes, ranges from about $3,000 to $10,000.61 In many cases, extravagant (and consequently, coercive) fees are offered to potential donors with exceptional physical or intellectual attributes.62

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