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Case Title - Jan Balaz v. Anand Municipality
Case Citation - AIR 2010 GUJ 21
Relevant Acts and Sections -
Parties Involved -
Petitioner - Jan Balaz
Respondent - Anand Municipality and Marthaben Immanuel Khristi
Facts of the Case
Jan Balaz, the petitioner, is a German national and the biological father of two babies given birth by a surrogate mother named Marthaben Immanuel Khristi (Indian citizen). Susanne Anna Lohle is the petitioner's wife, who is also a German national. She couldn't biologically conceive a child, so the couple opted for In Vitro Fertilization (IVF). Assisted Reproductive Technology In-fertility at Anand helped them with the procedure. Susanne could not reproduce ova(eggs), so they asked for a donor (anonymous).
An Indian citizen donated her ova, which was fertilized using the petitioner's sperm, and the fertilized embryo was implanted into the surrogate mother's uterus. The surrogacy agreement was formed between the petitioner and the respondent. (Marthaben Immanuel Khristi). The respondent was clearly told about all the terms of the agreement. She had agreed that she would not take any responsibility for the child's well-being, and the biological parents would have the legal obligation to accept their child.
On January 4, 2008, the respondent gave birth to two baby boys. Mr. Balaz applied for registration of the children's birth in the prescribed form to Anand Nagar Palika, who issued a certificate of birth to the children. Initially, the certificate showed January 14, 2008, as the birth date, which was later corrected to January 4, 2008. However, the new birth certificate showed the name of the respondent (surrogate mother) as the name of the mother.
The Balaz couple wanted to settle in the United Kingdom. Since the babies were born in India and are Indian citizens, the petitioner applied for their Passport, showing their names as Balaz Nikolas and Balaz Leonard. Mr. Balaz was shown as their father, but the respondent's name was shown as their mother. Later, the Regional Passport Office directed the petitioners to surrender their passports till the final hearing of the Hon'ble High Court.
Mr. Balaz submitted their passports on May 14, 2009, before the Passport Authority at Ahmedabad. He now needs the passports back, but he was refused by the Passport Office. Aggrieved by this denial, he filed a petition in the Hon'ble Supreme Court.
Issues of the Case
Whether a child born in India to a surrogate mother, an Indian national, whose biological father is a foreign national, would get citizenship in India, by birth?
Arguments of the Petitioner
The Petitioner contended that since both the children were born in India, so they are Indian citizens by birth as per Section 3 of the Citizenship Act, 1955. Hence, they are entitled to have all the rights of the Indian citizens, and the Passport Authorities are legally obliged to issue Passports to them under The Passport Act, 1967. He argued that surrogacy was not prohibited in India, and the surrogate mother was an Indian citizen.
The counsel for the petitioner submitted that the petitioner and his wife are German citizens, but as the children aren't born in Germany, they would not get German citizenship.
Arguments of the Respondent
The Respondent contended that the children were not Indian citizens. They argued that the only intention petitioners have is to get German citizenship, and the citizenship of India is a mere means to attain it.
Judgment of the Case
The Hon'ble Bench held that the children would be regarded as the citizens of India. The judgment held that the prime concern of the case was to analyze the relationship between the children and the gestational surrogate and with the donor of the ova.
This ruling signified the need to make new legislation regarding the rights of a surrogate child.
"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. Surrogate mother is not the genetic mother or biologically related to the baby, but, is she merely a host of an embryo or a gestational carrier? What is the status of the ova (egg) donor, which in this case an Indian national but anonymous. Is the ova donor is the real mother or the gestational surrogate? Are the babies motherless, can be brand them as legal orphans or Stateless babies? So many eth ical 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."
The judgment highlighted the need to rectify and elaborate legislation regarding the rights of a surrogate baby, especially when the donor and gestational mother is different. The Bench looked at the laws of other countries like Japan and Ukraine before coming to a conclusion that the gestational mother will be recognized as the natural mother of the children.
They further mentioned that the wife of the petitioner who neither donated the ova nor carried the babies wouldn't be regarded as the natural mother of the children. Therefore, if the mother of the children is an Indian, then the boys will be considered Indian citizens by birth.
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References
For a more simple understanding, refer to the article " What Are The Surrogacy Rules In India? " by clicking the link below.