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 observed and enforced by the established Colonial Courts. However, for such customary law to be enforced, it must pass the requisite validity test of not being repugnant to natural justice, equity and good conscience, not being incompatible either directly or by implication with any law in force for the time being; nor contrary to public policy. Post-colonial statutes like the Evidence Act in section 14 (3) and the various High Court Rules of the states of the federation echoed this test. On the basis of these tests, some rules of customary laws, especially those relating to what the author called Assisted Customary Reproductive System (ACRS); were declared repugnant and rejected over the years.  In the face of modern trends in Assisted Reproductive Technologies (ART) in the field of orthodox medicine, the paper questions the basis for the continued observance of the repugnancy test for rules of customary law; especially those relating to ACRS. The paper finds that what modern ART seeks to do or is doing for people with fertility challenges in contemporary times; customary law was doing for pre-colonial people with fertility problems. Aside methodology, the paper finds no other significant difference with both methods. 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 is need to also re-evaluate and uphold ACRS; since both serve the same purpose.