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German Twins Born To Indian Surrogate Obtain Indian Citizenship

According to The Times of India:

AHMEDABAD: Over a year after they were born, twins born to a German couple through a surrogate mother in Anand have got Indian citizenship.

In a historic judgment, the Gujarat High Court held that children born to surrogate mothers on Indian soil are Indians, if there is any dispute regarding their citizenship in cases of foreign nationals.

Jan Balaz, a freelance writer and his wife Susanne Lohle, both Germans, could not have kids, so they came to India and entered into a surrogacy agreement with Martha Khristi, who delivered twins last April — Nikolas and Leonard. Their birth was registered in Anand municipality. The babies could never be German citizens, as the laws there prohibit surrogacy. The couple settled down in UK and wanted a visa for the kids from British embassy. They had already got Indian passports.

However, the passports were withdrawn by the Centre on the ground that the parents were not Indian nationals and therefore the kids were not Indians. Balaz approached the High Court, and there was a debate on the twins’ citizenship. Ultimately, the High Court took a middle path in the absence of any law, and ordered the Centre to issue identity certificates, just like the Japanese baby Manji’s case, and on basis of this the couple was allowed to take their babies to UK.

A division Bench of Chief Justice KS Radhakrishnan and Justice AS Dave asked the Centre to give passport to babies for obtaining British visa. The Centre was willing, but surrogacy laws and citizenship were not clear.

Finally, the court considered the Citizenship Act and held: “Even if the children are described as illegitimate children, they are born in this country to an Indian national and hence, they are entitled to get citizenship by birth, as one of their parent is an Indian.”

The inability of the Intended Parents to obtain German citizenship surprises me given my past experience with German clients using American surrogates. Many countries ban surrogacy, but generally those restrictions are limited to prohibiting the conduct within that jurisdiction. This is sheer speculation on my part, but I wonder if this was a traditional surrogate arrangement where the surrogate was the genetic mother. This might explain the result, particularly if the traditional surrogate was married. While there have been a few reported incidents of countries attempting to deny citizenship to children born as a result of an international surrogacy arrangement, they are extremely rare. Fortunately this German couple obtained the result they were seeking. However, for many Germans who have no choice but to work with a gestational carrier outside of Germany, not being able to secure German citizenship for their child would be unacceptable. I will post an update if I receive any additional information on the underlying circumstances of this case.


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