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Assisted Reproduction

Surrogacy In India Remains Perilous

Hopefully we will know more by Friday. But for the time being, anyone considering using the services of an Indian surrogate ought to keep a close eye on this case:

A childless German couple who had twins through a Gujarati surrogate mother are negotiating their first challenge as parents, in the Supreme Court — German laws do not recognize surrogacy as a means of parenthood while the Centre will not allow the babies to be taken back as Indian citizens. As per the surrogacy agreement between the German couple and the Gujarati mother, the Anand municipality registered the twins as children of the foreign citizens, entitling the parents to get travel documents for the babies.

But realizing that German laws would not allow the twins, born out of surrogacy, to be treated as German citizens, their father Jan Balaz moved the Gujarat high court, seeking Indian citizenship. The HC ruled in his favour, saying, “since the surrogate mother is an Indian national, therefore, the surrogate children will also be treated as Indian nationals and entitled to Indian passports”. This made the central government rush to the Supreme Court, challenging the HC verdict. Before a Bench comprising Justices G S Singhvi and A K Ganguly, counsel S W A Qadri questioned whether a surrogate mother could be treated as one of the parents under the Citizenship Act, 1955, which says “every person born in India, one of whose parents is a citizen of India, shall be a citizen of India by birth”.

Further, he asked “whether an agreement of surrogacy between parties (surrogate mother and the parents)…executed in India will not hold field in the absence of any valid legislation passed by Parliament”. The Centre also wanted the apex court to decide “whether the gestational carrier/surrogate mother will have any parental right to a child so born, even if there is a valid and legally enforceable agreement of surrogacy having contrary stipulations”.

Termed the issue to be of “grave importance”, the SC stayed the high court order and issued notice to other parties, including the Anand municipality. The matter has been posted for hearing on Friday. The Centre cited the recent report of the Law Commission which recommended that the birth certificate of the surrogate child have the names of the commissioning parents only. “In the absence of any valid legislation, the Law Commission recommendation will have persuasive value,” it said.


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