Children are very important in the African Culture because a childless marriage is often viewed as an “incomplete marriage”. When a couple is not forthcoming in producing children years after marriage, relatives may start 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. Very few families don’t take steps to solve infertility problem. Many modern reproductive techniques which allow conception to occur without resorting to normal sexual intercourse now abound and are increasingly becoming accessible in developing countries.
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 largely 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. This article advocates for legal regulation of Assisted Reproductive Technology (ART) in Nigeria. Nigerians also need to find answers to concerns about safety, rights and regulation of technology so as to guard against abuse. The article concludes by proposing a way forward in form of legal regulation of ART in Nigeria.
This article is divided into five sections including this introductory section. The second section deals with the issue of Infertility and Assisted Reproductive Technologies. The third section discusses the Legal Regulation of ART; Models/Approaches to Regulation; Regulatory Issues and the Legal Control of ART – Case studies around the world. The fourth section deals with the current status of ART in Nigeria and other developing countries. The fifth section is the conclusion.
2.1 Infertility Defined
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. 1 Infertility can also be defined as failure to conceive after twelve months of regular unprotected sexual intercourse.2 The World Health Organization (WHO), however, stipulates a time period of two years.3 Infertility is a problem of both sexes.4 The view has been expressed that 40 percent of cases of infertility are caused by female factors, another 40 percent caused by male factors while 20 percent is a combination of males and females.
In certain parts of sub-Saharan Africa, the prevalence of infertility is said to be as high as 30% or more.5 The occurrence in the United States is 20 percent among married couples, that is, one in every five couples is affected by infertility.6 Though there are no reliable statistics in Nigeria but the incidence of infertility is apparent. Generally, the incidence of infertility traverses developed, developing and least developed countries. 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.7 When extrapolated, to the global population, this means that 50 to 80 million people may be suffering from some infertility problem.8
Infertility, however, can be seen as either a medical problem or a social condition of childlessness. We shall explore the medical dimension in the next subsection. From the social perspective, the common assumption is that the need and desire to have children is a normal part of life, hence infertility is 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.9 The stigma of childlessness is especially difficult for women, who have historically been defined and identified through their roles as mothers.10
2.2Causes of Infertility
The causes of infertility underscore its medical/biological dimension. Infertility is caused by or at least associated with several medical or (biological) environmental and social factors.11 The more common physiological causes are sexually transmitted diseases, smoking and age.12 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.
Most cases of the infertility in developing countries in Africa like Nigeria are attributable to damage caused by infections of the reproductive tract, notably Gonorrhoea and Chlamydial infection.13 Delayed diagnosis of Sexually Transmitted Infections (STIs), lack of diagnosis, incomplete therapy, no therapy or inappropriate therapy compounds the problems of STIs in Africa. Infections during or after abortion, and during and after childbirth represent the next major causes of female infertility in Africa14 after STIs and account for the preponderance of secondary infertility over primary infertility in Africa.15
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 Africa, there are more tubal factors, more irreversible oligospermia16 or azoospermia17 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 Nigeria.18 The population that is involved with regards to infertility is as high as 20 to 25 percent of married couples.19
2.3Consequences of Infertility
In addition to the personal grief and suffering it causes, the inability to have children especially in poor communities can create other 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 community.20 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, it can certainly be said to be a social and public health issue as well as an individual problem.21 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 them 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 families or friends who are aware of their predicament. Depression, anxiety, panic attacks and agitation, magical thinking, paranoid anxieties, depersonalization and derealisation may prevail intermittently.22
Infertile couples 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.23 The adoption and “live with it” options have not yet alleviated public concerns.
Public adoption involves a long and complex process24 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 especially for couples who give high premium to marital fidelity. The demand for reproductive technologies is high partly because the alternatives are difficult and or undesirable.
2.4Assisted Reproductive Technologies (ARTs)
Assisted Reproductive Technologies are generally considered to be a treatment for the condition of infertility. ARTs encompass 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.
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.25 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. 3.0Legal Regulation of ART
Regulation has to do with the adjusting, organizing or controlling of something; stating what may or may not be done or how something must be done. 26 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 for that of the community at large.27 Garrison28 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. This makes it imperative not to leave this issue solely in the realm of private affairs because the category of people involved may not be in a position to make informed decision on what is best for them and the society at large.
The stakeholders in this field are the practitioners, the infertile and the society at large. Regulation therefore has to balance the interests of all the parties involved. Assuming it is only the contractual relationship between the practitioners and the infertile that needs to be regulated, it may be okay to leave regulation of the field to the courts as case law but the issues involved cut across different areas that are so germane to the future generation, hence the need for statutory regulation.
3.1Models/Approaches for Legal Regulation of ART
Law is an instrument of social control and it adopts a number of techniques – such as the Penal Technique, the Administrative Regulatory Technique, the Public Benefit Conferral Technique, the Private Arranging Technique among others – to do so. Several models/approaches have been suggested for the legal regulation of ART. Some of which are: 1. Top-Down Approaches: The approaches in this category are the Rights Based Analysis29, the Contract Based Analysis30 and the Anticommodification Approach31.
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). 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 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 Regulation32- 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.33 3. An Interpretive Approach34 – 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 Parentage35- 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. 5. The Communitarian Approach36- This Approach regulates reproduction in the name of collective well being. In Nigeria, ART is uncontrolled / unregulated by statute even though we have a number of recognized fertility clinics in the country.37 The present approach of affiliating with foreign institutions can be seen as self regulation, not by the practitioners but by each clinic.
The general public is not in a position to assess the level of adherence to guidelines of the foreign scientists or bodies. The relationship between a clinic and a couple is governed by contract which is an aspect of the private arranging technique of law as an instrument of social control. There is sufficient state interest that warrants complementing this with the administrative regulatory technique which entails government making laws to regulate essential aspects of ART services. 3.2Regulatory 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: a. 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 alone38.
Others recognise the importance of IVF for infertile couples and urged that fewer embryos be created in the first place.39 Because there are limits on the number of embryos that can be safely transferred in one cycle, this means limiting the number of eggs fertilised to two or three.40 Italy took a highly restrictive, prohibitory approach in 2004.41 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.42 The 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.
43 b. Number of Embryos Transferred: The most important medical and social problem in IVF is the high rate of multiple births44 and the fact that IVF produces less healthy children raises a variety of problems45. Wise social policy and practice would take steps to minimise multiple births but doing so raises many issues bothering on procreative autonomy.
46 c. Limits on payments to Donors and Surrogates: This issue has a lot of complexities47. Donors and research subjects deserve 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.48 d. 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.49 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. e. 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.50 Reproductive technologies are used by gay and 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.51 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”52.
The challenge is 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. It must however be noted that in Nigeria, gay and lesbian relationship is an offence under the Criminal Code. f. 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 maps53 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 Medicine54 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.55 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.56 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. g. Right of Privacy – There is the belief 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. Connecticut57, 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 and fill the earth and subdue it…”58The right to procreation does not cease merely because a person or couple is unable to achieve procreation through the traditional means.
In Skinner v. Oklahoma59 the court asserted that procreation is “fundamental to the very existence and survival of the race”.60 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. h. 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 is termed PROCREATIVE TOURISM. For example, if a couple in country A seek donor insemination but do not wish to be subject to Country A’s regime of identified sperm donor, they might choose to go to Country B for treatment with anonymous sperm donation.61 i. 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.62 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 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 42 of the 1999 Constitution is that a child born through donor insemination without the consent of his father is legitimate. j. 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.63
3.3Legal 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.64 This has been the case with the new Assisted- Reproductive Technologies.
The Government of Victoria 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 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.65
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.66
In Germany, there is an Embryo Protection Law that effectively forbids destructive embryo research.67In 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).68
The U.S. Congress enacted the Fertility Clinic Success Rate and Certification Act of 1992.69 This Act requires all fertility 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 programme 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.70
The United Kingdom has the most comprehensive regulatory scheme, the pioneering Human Fertilization and Embryology Act of 1990. This Act was reviewed in 2008 with the 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; 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 divergence.
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, 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 statutory 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 Nigeria71, it was 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 where persons in Nigeria have access to fertility treatment procedures of different countries without travelling out of the country.
This phenomenon has encouraged prospective ART patients to have a wide range of options to choose from, or some sort of “forum shopping” with regards to ART services. A situation as this is best explained with the aid of the illustration below: 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 interested in having only male offspring (sex selection) and also wants a set of sextuplets. Considering the fact that the 2008 UK law has placed a ban on sex selection and also forbids multiple implantation, the couple would rather not visit a centre that has affiliation with UK. There are public policy considerations which inform the practice permitted in each country. For Nigeria to allow the parties exercise unbridled choice is a clear illustration of the absence of a well thought out policy.
4.0Current Status of ART Regulation in Nigeria
Currently, there is no statutory regulation of assisted reproductive technology (ART) in Nigeria even though there are several centres.72 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 developing African countries 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 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.73 In Nigeria, the various ART centres are self-regulated, there is no national body that oversees their affairs.
Considering the current status of the regulation 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 centres are set up in non-governmental medical facilities 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 perception of infertility as an individual or social issue in Nigeria is responsible for the absence of statutory regulation of ART. It is submitted that voluntary adherence to guidelines from different countries by the various ART centres is not the best means of regulating ART in Nigeria. This position is strengthened by the fact that Africa, including Nigeria, 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.
In addition, ART practitioners should come together and form a national body that would come out with a standard of practice suitable for the Nigerian Society. If the government and the practitioners tackle the issue from both angles, one aiding the other, this 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 make the populace lose confidence in the technology and its practitioners.
ART regulation is an integral part of medical practice and a federal legislation is imperative to ensure the same standard is maintained throughout Nigeria. It is important that the appropriate federal legislation authorise a subordinate authority, and I suggest, the Minister of Health, to make detailed regulations or issue guidelines on the practice of ART in Nigeria. This becomes necessary because of the tendency of technology to outpace the law. This will make it unnecessary to invoke the legislative power of the National Assembly each time a modification is required.
ART has brought benefits to human existence in the areas of giving children to the infertile and hope to stigmatised barren women. It has been noted that infertility causes major marital, family and social 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 lack of statutory regulation of ART may cause more harm than public good. Many countries in sub-Saharan Africa including Nigeria have no statutory 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 statutory regulation of ART in Nigeria which must define and prescribe roles and status for 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 treatment 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 also 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.
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Topic: Towards an Effective Legal Framework for Assisted Reproductive Technology in Nigeria
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