Friday, November 13, 2009

'Surrogate babies born in India are Indians: HC ruling

'Surrogate babies born in India are Indians'

The Gujarat High Court on Wednesday held that children born to a surrogate mother in the country are Indians irrespective of the nationality of their fathers.

But the division bench, comprising chief justice K. S. Radhakrishnan and Justice Anant S. Dave, said adequate legislation was necessary to bring clarity on the issue.

The order came in the case of Jan Balaz, a German national who had sought Indian passports for his twins Balaz Nikolas and Balaz Leonard. The twins were born to an Indian surrogate mother, Martha Khristi, in Anand with the help of surrogacy expert Dr Nayana Patel.

Balaz and his wife Susanne had sought Patel's help as Susanne could not conceive. An unnamed Indian woman donated eggs, which were fertilised with Balaz's sperm and deposited in Martha's womb.

On January 4 last year, Martha gave birth to the boys.

Sometime later, Balaz applied for the twins' passports. Though the documents were issued initially, the passport office later asked Balaz to surrender them.

The authorities said Susanne, who had not conceived the children, was mentioned as their mother in the birth certificate.

They said it was a violation of the Birth and Death Registration Act, 1969. Balaz submitted the passports, but then moved the high court saying he had to take his sons to Germany and apply for their citizenship.

The court said, " a lot of legal, moral and ethical issues arise in this case, which have no precedents in this country. We are primarily concerned with the rights of the innocent babies, much more than the rights of their 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." " A comprehensive legislation dealing with all these issues is very imminent to meet the present situation, which have no clear answers in the existing system in this country," the court said.

On the boys' citizenship, the court said: " 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." The court then asked the passport authorities to release the boys' passports.

Baby Manji's battle

No case has highlighted the delicacy of surrogacy laws like baby Manji Yamada's. Manji was born to an Indian surrogate mother in Gujarat last year and she was supposed to be adopted by her Japanese parents - Ikufumi Yamada and his wife Yuki - later.

But the couple divorced and Yuki washed her hands off the baby. And since Indian law doesn't allow single men to adopt daughters, Manji wasn't handed over to Yamada. After a long legal battle, she finally left for Japan with her grandmother.

New law needed for surrogacy: HC

AHMEDABAD: The story of Nikolas and Leonard, one year old babies born to German couple - Jan Balaz and Susanne Lohle through a surrogate mother iin Anand, has set a precedent for foreigners seeking legitimacy for such babies. Chief Justice of Gujarat High Court KS Radhakrishnan saw the issue from the point of view of the kids, before declaring them Indian and called for legislation for such assisted pregnancies. 


Lohle could not produce ova (eggs), so it was derived from an anonymous Indian woman and its surrogate gestation was also by an Indian, Martha Khristi. Thus, Lohle is not the biological mother. But whether she be considered mother at all in the process of granting passport to the kids, became an issue. 

 The kids could not become German citizens since Germany prohibits surrogacy. The couple and migrated to UK to avoid legal tangles. For obtaining British visa, however the kids needed Indian passports. 

Caught up in legal tangle, the kids were denied passports by the Indian government. 

A division bench headed by the Chief Justice KS Radhakrishnan dwelled on the larger issue of bringing in legislation in this regard. "We are primarily concerned with the rights of two new born innocent babies, much more than the rights of biological parents, surrogate mother or the donor of the ova... Are the babies motherless, can we brand them as legal orphans or stateless babies? So many ethical and legal questions have come up for consideration in this case for which there are no clear answers so far, at least in this country... Legitimacy of the babies is therefore a live issue," the court said highlighting the problem.

Emphasizing on the need of proper legislation to regulate assisted reproductive technology clinics as well as rights and obligations of parents to surrogacy, the judges cited recommendation of Law Commission of India. It had expressed concern regarding exploitation of women through surrogacy, which should also be taken care of by legislation. 

The high court has called for a comprehensive legislation dealing with all issues related to surrogacy. "Legislation is very imminent to meet the present situation created by the reproductive science and technology which have no clear answers in the existing legal system in this country. We hope than the views expressed by us will pave way for a sound and secure legislation to deal with a such situation. Legislature has to address lot of issues like rights of the children born out of surrogate mother, legal, moral, ethical. Rights, duties and obligations of the donor, gestational surrogate and host of other issues," the judges observed. 

I wonder what the implications of this ruling will be for Indian surrogacy parents. Could a surrogate mother refuse to hand over a baby, and challenge parental rights in court? despite signing contracts in India where the SM and her husband state they give away all parental rights, none of these contracts have been tested until now. And failure to stick to the agreements outlined in the contract would only be a breach of contract law.


CharlieCat said...

I agree that this is an issue of concern, however it came about because these children were stateless as Germany does not accept children born through surrogacy as Germans by descent.

It does raise the issue of what would happen if a surrogate did want to keep a child, and the suggestion that Indian Courts look at developing more formal legislation but for now:

Choose your surrogate wisely, make sure they are screened - the reality is that most don't want another child and certainly not one from a strange man.

Secondly, any legislative reform will require acts from parliment which will take time. That is not to say that it won't happen, but whatever changes are being looked at, they won't happen quickly.

The end result of this ruling was the couple could take their child out of India to the UK.

Tigerlilycat said...

Really interesting - I'm going to post a link to this on my blog too if that's ok.

Wonder what the decision would have been if it was the intended mothers eggs and not a donor??