EMERGING TRENDS IN ASSISTED REPRODUCTIVE TECHNOLOGIES (ART) AND THE REPUGNANCY TEST FOR RULES OF CUSTOMARY LAW: A CALL FOR RE-EVALUATION

Abstract

The received English Laws did not abolish the Customary Laws of the colonial people. They were to be observedand enforced by the established Colonial Courts. However, for such customary law to be enforced, it must passthe requisite validity test of not being repugnant to natural justice, equity and good conscience, not beingincompatible either directly or by implication with any law in force for the time being; nor contrary to publicpolicy. Post-colonial statutes like the Evidence Act in section 14 (3) and the various High Court Rules of the statesof the federation echoed this test. On the basis of these tests, some rules of customary laws, especially thoserelating to what the author called Assisted Customary Reproductive System (ACRS); were declared repugnantand rejected over the years. In the face of modern trends in Assisted Reproductive Technologies (ART) in thefield of orthodox medicine, the paper questions the basis for the continued observance of the repugnancy test forrules of customary law; especially those relating to ACRS. The paper finds that what modern ART seeks to do oris doing for people with fertility challenges in contemporary times; customary law was doing for pre-colonialpeople with fertility problems. Aside methodology, the paper finds no other significant difference with bothmethods. The intents, purposes and philosophical underpinning of the two systems remain the same. The paper,therefore, recommend that as ART is pushing legal systems to modify existing laws to accommodate it, there isneed to also re-evaluate and uphold ACRS; since both serve the same purpose.