NEITHER PERSON NOR PROPERTY: COMPARATIVE LEGAL DISCOURSE ON THE LEGAL STATUS OF THE EMBRYO IN VITRO (USE, STORAGE, RESEARCH) IN NIGERIA

Abstract

The creation, storage, testing and disposal of human embryos in vitro are now routine features of assisted reproduction in Nigeria, yet Nigerian law has not determined the legal status of the embryo created outside the body. (in vitro) This paper examines that status under Nigeria's plural legal system, focusing on the General law and Islamic law. A doctrinal research methodology and comparative analysis of selected common law jurisdictions and countries that practice Islamic Law was utilized. The paper finds that the constitutional right to life and the criminal prohibition of abortion in Nigeria merely protect the embryo only while it is in the womb, and that as of today, no specific law protects the embryo in vitro. And no law says  anything about the legal personhood of embryo in vitro. In a similar vein, Islamic law also fails to give a categorical standpoint on the embryo in vitro. It recognises the dignity of the embryo from conception as islam protects embryo upon ensoulment, and permits the creation and use of embryos only within a subsisting marriage. Drawing on the United Kingdom, Australia, the United States, Saudi Arabia and Malaysia, the paper examines embryo storage and disposal, embryo research and preimplantation genetic testing. This paper argues that the absence of law to protect the embryo created outside the woman’s body in Nigeria is an anomaly in that it leaves the practitioners involved in Assisted reproduction to deal with the embryo in vitro the way they like without any legal framework. The absence of a law in this regard operates, in effect, as permission. The paper submits that the embryo in vitro cannot be protected without first resolving the question of its legal personhood. That is to know if it is a person capable of being protected by law or a mere property that can be subjected to any maneuvers. This paper recommends a national statute on assisted reproduction that defines the status of the embryo in vitro, establishes a regulatory body, sets rules on consent, storage, research and genetic testing, while making use of religious guidance within the Nigerian context.