Can Lesbian, Gay, Bi-Sexual or Transgender (LGBT) persons contract a valid marriage, have, adopt, raise kids or a family? In this piece, Ogechukwu Mary Ulasi-Ejefobiri analyses LGBT rights to marriage and family under the law.
Right to Found a Family.
It is pertinent to note that people do not need to be married or be in a relationship to raise a family. The traditional concept of family has now be characterized by non-traditional family structures that fulfill traditional functions. For example we have singles raising children and non-married people raising children.
The LGBT’s can independently institute families in Nigeria and the following ways can be employed by them to have children.
1) Assisted Reproductive Technology–
One of the other popular options for LGBT to have children is through assisted reproductive technology (ART). These processes allow at least one member of an LGBT couple or an LGBT to be directly genetically related to a child, which is the main reason why many LGBT’S choose this route.
1 The practice of Assisted Reproductive Technologies (ARTs) have been in use in Nigeria for some time now, but without a formal legal framework regulating it.
Different medical technologies have been developed to assist in reproduction and overcome infertility including Artificial Insemination; In vitro Fertilization; Surrogate Motherhood; Human Cloning; Gene Replacement Therapies; Artificial Embryo Donation; Ectogenesis; Embryo Adoption; and Egg Transfer.2
- I) Egg, Sperm Or Embryo Donation and In Vitro Fertilization (IVF)
Under this technique, an egg is removed from one of the infertile woman’s ovaries, fertilized outside her body, and then replaced in her womb.
A baby that develops from IVF procedure is called test-tube baby.3 In all LGBT assisted reproduction cases, a gamete donation is needed, whether it’s an egg for a single man or male couple, sperm for a lesbian woman or couple, or an embryo for anyone who can’t create a viable embryo on their own.
Fortunately, there are many options when it comes to finding sperm, egg or embryo donations today.4
Lesbian couples can obtain a sperm or embryo donation, complete the in vitro fertilization or intrauterine insemination process, and then carry their pregnancy to term in their own uterus (if medically able). However, gay male couples cannot complete this process without a surrogate.5
- II) Surrogacy
Surrogacy is a procedure in which a woman accepts to carry out a pregnancy to term for a couple or for another woman, either altruistically or for financial gains. She pledges to abandon the child at birth, which is to be adopted by the woman who will become the legal mother.6
A surrogacy arrangement is an undertaking given by a woman (the surrogate mother) to bear a child for another person or couple (the commissioning parents), the latter proposing to undertake the future care of the child.
Conception can occur by insemination of the surrogate mother by the commissioning father’s sperm, or by sexual intercourse for the purposes of conception. “Host” surrogate mothers have a fertilized egg implanted into the uterus and the embryo will be the genetic offspring of the commissioning parents7
III) Artificial Insemination (AI)
This is the process by which sperm is placed into the reproductive tract of a female for the purpose of impregnating her by using means other than sexual intercourse. The sperm used in this method can be from the husband (AIH) or from a donor (AID).
Modern techniques for artificial insemination were first developed for the dairy cattle industry to allow many cows to be impregnated with the sperm of a bull with traits for improved milk production.
According to some experts, Artificial Insemination is a form of medically assisted conception and not that of assisted reproduction, which stands only for treatments that include the handling of human oocytes and sperm or embryos outside the body for the purpose of establishing a pregnancy8
- Are there valid justifications for restricting LGBT’s the right to marriage?
In every culture and in every religion, marriage is recognized. In some cultures, dowries are paid in some others dowries are not paid, but there is marriage all the same.
9 Marriage is a Universal Institution which is recognized and respected all over the world. As a social institution, marriage is found on and governed by social and religious norms of society. Consequently, the sanctity of marriage is a well – accepted principle in the world community.
10 Nigeria, like many African countries, is a conservative society where LGBT is considered a taboo. Religion seriously shapes politics in Nigeria.
The legalization of particularly LGBT rights is associated with the signs of end time amongst Christians. The African traditional view of marriage and family holds that LGBT practice is “animalistic and degrading to humanity”, “it is defiant to virtues such as value, moral, respect and honor that being African stands for”; “it is an unacceptable social behavior and a taboo that is anti-ethical to the African Culture”.
11 Nigeria’s moral frame recognizes that marriage is the coming together of a male and female each as partner of a complete life giving whole within a heterosexual union which is not obtainable in gay marriage.
12 In Nigeria, morality is based on the beneficiary values of collective family and community well-being. The moral system of most Nigerians declares homosexual relations to be wrong and unacceptable.
That is homosexuality, bi-sexual and transgender lifestyle is a challenge to the moral foundation of Nigerian. Nigerians believe that it is not part of their culture therefore it should not gain ground.
LGBT is not part of any ones culture but it emerged out of responses to life development process e.g. urbanization, education international travel, internet spread etc. He further argues that same sex relationship is not alien in our society but it is not societally acceptable.13
Family life is the bedrock of African society. The traditional family is made up of father, mother and children. It is only through marriage that a new family can be built. Traditionally the primary purpose of marriage is to procreate and propagate the species.14 LGBT implies the destruction of the family institution, which is the basic unit of the society.
Read Also: Homosexuality, lesbianism, cause of insecurity in Nigeria – Emir
In Nigeria, LGBT is not only seen as a crime but a social and moral wrong, the issue of same sex marriage is criminalized in Nigeria, however being gay, bisexual or transgender is not a crime, the law only criminalizes the activities.
Being transgender and bisexual is seen as social and moral wrong, the cultural and religious nature of the country makes it wrong and sinful but doesn’t make it a crime.
Conclusion
In Nigeria it is clear that people of same-sex cannot validly contract a marriage, however the law is undeveloped on the issue of transgenders contracting a valid marriage.
The position of a transsexual who has undergone a sex-reassignment is unclear if they are caught up by the law since they have had sex reassignment surgeries to transform into the other sex.
So, if after the surgery they have sexual relations with a person who hitherto would have been a person of the same sex the law can no longer apply.
It is also clear that there is no legislation regulating Assisted Reproductive Technology (ART) in Nigeria; this means that though LGBTs cannot legally marry, they can independently raise family through the help of Assisted Reproductive Technology ART because in Nigeria being a Gay, Lesbian, Transgender or Bisexual is not an offence.
Our laws should take cognizance of technological advancement most especially on the issue of sex change/ reassignment.
In Nigeria Assisted Reproductive Technology is accessible to anyone; there is no health law restricting access to IVF, Surrogacy etc.
The implication of this is that anyone can approach a health provider who provide these services and obtain any form of assisted reproductive technology they desire.
This means that LGBT’s can decide to found a family in Nigeria because there is no restriction on ART in Nigeria. There should be a legislation regulating assisted reproductive technology in Nigeria.
Proper sensitisation and awareness on diverse sexual orientations and gender identities.
The government should initiate a national debate on LGBT with the view of raising public awareness on issue of diverse sexual orientations and gender identities, the disadvantages of promoting LGBT, this can be achieved by undertaking a national education and sensitization campaign on issues of LGBT, proper sex education in schools, training of police officers, media campaign and training of other law enforcers.
Most people are unaware of existing laws on same-sex marriage in Nigeria, and what the law entails, people are unaware of sex change or reassignment.
This can be made possible through proper education and awareness. When this is done it will sustain the belief system of Nigerians on why LGBT’s should not marry or found family in Nigeria and discourage LGBT activities in Nigeria.
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