No passports to babies of surrogate Indian mothers, apex court told

New Delhi, November 30: The central government Monday told the Supreme Court that babies born to surrogate Indian mothers but alien biological fathers are not entitled to Indian passports which can only be issued to citizens of the country.

The government’s submission came in a lawsuit challenging a Gujarat High Court ruling asking the central government to issue passports to twins, born to an Indian surrogate mother but German biological parents.

The government has opposed the high court ruling, contending that giving a passport would declare the children as Indian citizens.

Admitting the government’s appeal against the high court ruling, a bench of Justice G.S. Singhvi said the petition had raised several important legal issues and should be immediately disposed.

Appearing for the central government, counsel Wasim A. Qadri said the passport office was willing to issue travel documents to the children.

“But they (the German couple) are not accepting it,” Qadri told the bench, which has fixed Dec 4 for a final hearing of the matter.

In its lawsuit, the government has contended that the high court judgment has overlooked a recent Law Commission recommendation that birth certificate of a surrogate child should only contain names of the “commissioning parents”.

The government further stated that countries recognizing surrogate parenthood does not grant any rights to a surrogate mother.

“A surrogate mother cannot be one of the parents by excluding commissioning parents under the Citizenship Act of 1955,” the government told the bench.

The government wanted the court to clarify if a surrogate mother would have any parental right to a child born, even if there is a valid enforceable agreement of surrogacy between a surrogate mother and the commissioning parents.

Jan Balaaz and his wife had moved the Gujarat High Court in February 2008 to seek passports for their twins who were born in January 2008 to a surrogate mother in the state. He had initially requested it to ask the municipal authority to issue a birth certificate identifying the surrogate mother as his children’s biological mother.

Later, during the proceedings, he disclosed that he required the document for getting a passport for his children as the civil code in Germany did not recognize a commissioning mother.

He, therefore, required a passport to facilitate the entry of his children to Germany and had no intention to continue with the citizenship.

The couple, which had came to India in December 2006 in search of a surrogate mother, had entered into an agreement with Marthabehn, according to which she lost her right over the child after delivery.

It was further stipulated that the biological parents will have legal obligation to accept the child, who would be governed by laws applicable to biological parents.