Babies born to surrogate Indian mothers are Indians, rules court

GANDHINAGAR - The Gujarat High Court has ruled that children born to surrogate mothers on Indian soil are Indian citizens by birth, irrespective of the nationality of their fathers. It has urged the central government to immediately frame laws to clear the confusion.

In a landmark judgement, a division bench of Chief Justice K.S. Radhakrishnan and Justice Anant Dave ruled that immediate legislation is necessary to provide clarity in the situation created by advances in reproductive science and genetics as the existing legal system lacked clear answers to issues arising on the matter.

The court directed restoration of the Indian passports to the twin sons of a German father, who were given birth to by an Indian surrogate mother.

The judgment was a sequel to the judicial intervention sought by German freelance writer Jan Balaz, who had sought Indian passports for his twins Nikolas and Leonard, born to an Indian surrogate mother, Martha Khristi.

Balaz and his wife, Sussane Lohle, had come to India to seek assistance from well-known Anand-based surrogacy expert Nayana Patel last year. Sussane was unable to conceive, so under Patel’s supervision an unnamed Indian woman donated eggs, which were fertilized with Balaz’s sperms and planted in Martha’s womb. She gave birth to the twins on Jan 4, 2008. Surrogacy is banned in Germany.

Balaz, who had since shifted to the United Kingdom, sought Indian passports to take his sons to Britain. The passports were initially issued but subsequently withdrawn by the Ahmedabad passport office on the ground that the column of mother’s name carried that of Sussane, who had technically not borne the children.

The situation contravened the Births and Deaths Registration Act 1969. Balaz then sought judicial intervention.

The court pointed out that “many legal, moral and ethical issues arise for our consideration in this case, which have no precedents in this country.”

“We are primarily concerned with the rights of two new born innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. Emotional and legal relationship of the babies with the surrogate mother and the donor of the ova is also of vital importance.”

The court upheld the citizenship rights of the two children and noted that “We, in the present legal framework, have no other go but to hold that the babies born in India to the gestational surrogate are citizens of this country and, therefore, entitled to get the passport, and therefore direct the passport authorities to release the passports withdrawn from them forthwith.”

It, however, also underlined the urgent need for a comprehensive legislation defining the rights of a child born out of surrogacy agreement, the rights and responsibilities of a surrogate mother, the egg donor, legal validity of the surrogacy agreement, and all the intricacies emerging therefrom, including the parent-child relationship and the responsibilities of Infertility Clinics.