K.S. Radhakrishnan, C.J.
1. The question 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, is a momentous question which has no precedent in this country.
2. Petitioner is a German national and is a biological father of two babies given birth by a surrogate mother by name - Marthaben Immanuel Khristi - a citizen of India. Petitioner's wife Susanne Anna Lohle is a German national. Due to biological reasons, the wife of the petitioner was not in a position to conceive a child. Desiring to have a child of their own, they opted for In Vitro Fertilization (IVF). Assisted Reproductive Technology Infertility Clinic at Anand came to their help. Investigation revealed that wife of the petitioner would not be in a position to reproduce ova (eggs) as a result of which it would not be possible to conceive a child even with the help of a surrogate mother by using the sperm of the petitioner. An Indian citizen keeping anonymity volunteered to donate ova, and through a scientific process the petitioner's sperm was fertilized with the donor's ova and the fertilized embryo was implanted to the uterus of the surrogate mother. Petitioner and his wife had entered into a surrogacy agreement with the second respondent - surrogate mother. After full discussion with Dr. Nayanaben Patel of the Clinic, surrogate mother was made known about the method of treatment. She had also agreed to hand over the child to the petitioner and his wife on delivery. Further surrogate mother had also agreed that she would not take any responsibility about the well being of the child and the biological parents would have legal obligation to accept their child and that surrogate mother would deliver and the child would have all inheritance facts of a child of biological parents as per the prevailing law.
3. Surrogate mother gave birth to two baby boys on 4.1.2008. Petitioner then applied for registration of the birth of the children in the prescribed form to Anand Nagar Palika. Anand Nagar Palika issued a certificate of birth to the children as per the provisions of Registration of Birth and Deaths Act, 1969. Earlier date of birth was shown as 14.1.2008, which was later corrected as 4.1.2008 and the name of the petitioner's wife who was shown as the mother of the babies, was replaced with the name of Marthaben Immanuel Khristi.
4. Petitioner and his wife, though German nationals, are working in United Kingdom, stated that they are desirous of settling down in U.K. and for the said purpose they have to obtain VISA from the Consulate of the United Kingdom in India. Since babies were born in India and are Indian citizens, petitioner applied for their Passport in India showing their names as 'Balaz Nikolas' and 'Balaz Leonard'. Petitioner's name was shown as the father and surrogate mother's name was shown as the mother. Applications were entertained by the Passport Authorities and Passport No. G-8229646 and Passport No. G-8229647 respectively were issued in the name of above mentioned babies. Later, petitioner received an intimation-cum-notice issued by the Government of India, Ministry of External Affairs, Regional Passport Office, vide letter dated 6.5.2008 stating as follows:
On process it revealed that as usual procedure Passport is already issued under Tatkaal Scheme to both. Still the matter is pending in Hon'ble High Court of Gujarat and this is the citizenship related issue and also the endorsement regarding your surrogacy is to be taken in the Passport of your sons. Kindly let this office know in whose possession at present the passport is lying? One such identical case Passport application is also received in which the name of the Mother who did not conceive the birth is given in the Birth Certificate, which is also violation of Scheme 2(1) a and 2(1)(d) of the Birth and Death Registration Act 1969 therefore making endorsement of Hon'ble High Court's order is to be done in Passports.
You are also hereby informed to surrender both the passport to this office immediately, it will be returned to you after the final decision received from Hon'ble High Court.
5. Petitioner, on the basis of the direction of this Court on 13.5.2008, surrendered both the Passports on 14.5.2009 before the Passport Authority at Ahmedabad. Petitioner now seeks a direction to the Regional Passport Officer to return those Passports so that he can take the babies to Germany and then make an application in Germany so as to acquire German Citizenship. Petitioner submits that surrogacy is not recognized in Germany. Even the Immigration Office at Siberia is also insisting production of the Passport and not Certificates of Identity issued by the Passport Office, Ahmedabad. Petitioner submits that since babies are born in India and are citizens of India, Germany would not recognize them as its citizens. Denial of Passports, according to the petitioner, is illegal and violative of Article 21 of the Constitution of India.
6. Detailed counter affidavit has been filed on behalf of the Regional Passport Officer at Ahmedabad on 25.3.2008 and 4.11.2009, stating that surrogate mother cannot be treated as mother of the babies, and children born out of surrogacy, though in India, cannot be treated as Indian citizens within the meaning of Section 3 of the Citizenship Act, 1955. Further it is also stated that parents of the children are not Indian citizens and therefore, children are also not Indian citizens as per Section 3(1)(b) of Citizenship Act, 1955. Further it is also stated that as per Passport Act, 1967, only Indian citizens can apply for Indian Passport and as per Section 6(2)(a) of the Act, Passport cannot be issued to non-citizens. Further it is also stated that as per direction of the Government of India, Ministry of External Affairs, Passport Authority can issue identity certificate, showing name of surrogate mother, which does not entail citizenship to the children but would enable him to take his children out of India. Further, it was also pointed out that the Central Government is yet to legalize surrogacy and hence, children born out of surrogacy, though in India, cannot be treated as Indian citizens.
7. Learned Counsel appearing for the petitioner Mr. Dhaval C. Dave submitted that since both the children are born in India, they are Indian citizens by birth as per Section 3 of the Citizenship Act, 1955 and therefore, entitled to have all the rights of Indian citizens and the Passport Authorities are legally obliged to issue Passports to them under the Indian Passports Act, 1967. Learned Counsel submitted that surrogacy is not prohibited in India and admittedly, children are born in India to a surrogate mother who herself is an Indian citizen. Learned Counsel submitted that petitioner and his wife are German citizens but as the children are not born in Germany, they would not get German citizenship, especially when German law does not recognize surrogacy. Learned Counsel submitted that for the purpose of obtaining VISA from the Consulate of United Kingdom, it is necessary that children should have an Indian Passport since they are born in India and not in Germany.
8. Learned Counsel Mr. Anshin Desai appearing for the Passport Authority submitted that children are not Indian citizens and therefore, not entitled to get Passport under the Indian Passport Act. Learned Counsel submitted that petitioner's intention is to acquire German citizenship and in order to facilitate that he is seeking Indian citizenship for the children. Learned Counsel submitted that in exceptional cases Passport Authorities can issue certificate of identity as was done in the case case of one Baby Manju Yamada. Learned Counsel also referred to the judgment of the Apex Court in Baby Manju Yamada v. Union of India (2008) 13 SCC 518 where the Passport Authorities have issued only certificate for permission to travel out of India.
9. We may at the outset point out that lot of legal, moral and ethical issues arise for our consideration in this case, which have no precedents in this country. 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 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. True, babies conceived through surrogacy, encounter a lot of legal complications on parentage issues, this case reveals. Legitimacy of the babies is therefore a live issue. Can we brand them as illegitimate babies disowned by the world. Further, a host of scientific materials are made available to us to explain what is traditional surrogacy, gestational surrogacy, altruistise surrogacy, commercial surrogacy etc. and also the response of various countries with regard to the surrogacy, especially commercial surrogacy.
10. Commercial surrogacy is never considered to be illegal in India and few of the countries like Ukrain, California in the United States. Law Commission of India in it's 220th Report on 'Need for Legislation to regulate Assisted Reproductive Technology Clinics as well as rights and obligations of parents to a surrogacy' has opined that surrogacy agreement will continue to be governed by contract among parties, which will contain all terms requiring consent of surrogate mother to bear the child, agreement of a husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying the child to full term, willingness to hand over a child to a commissioning parents etc. Law Commission has also recommended that legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parents without there being any need for adoption or even declaration of guardian. Further it was also suggested that birth certificate of surrogate child should contain names of the commissioning parents only and that the right to privacy of the donor as well as surrogate mother should be protected. Exploitation of women through surrogacy was also a worrying factor, which is to be taken care of through legislation. Law Commission has expressed its desire that Assisted Reproductive Technology Bill with all safeguards would be passed in the near future.
11. Ukraine Surrogacy Laws are very favourable and fully support the individuals reproductive rights. Clause 123 of the Family Code of Ukraine and Order 771 of the Health Ministry of Ukraine regulate surrogacy. Ukraine laws permit commissioned parents to choose the gestational surrogacy, ova, or sperm donation embryo, adoption, programmes for which no permission is required. Legislation also provides for a commercial surrogacy agreement between the parties. Child born legally belongs to the commissioned parents and the surrogate mother cannot keep the child to herself. California is also accepting the surrogacy agreements, which has no statute directly dealing with surrogacy. Courts generally rely on Uniform Parentage Act to deal with various surrogacy agreements. California Supreme Court in Johnson v. Calvert (1993) 5 CAL 484 held that gestational surrogate has no parental rights to a child born to her since a gestational surrogacy contract is legal and enforceable and the intended mother is the natural mother under the Californian law. In the above case the intended mother donated the egg and a surrogate mother gave birth, in such a case the Court held that the person who intended to procreate should be considered as the natural mother. In another case decided by the U.S. Court in the year 1998 - Buzzanca v. Buzzanca - 1961 CAL. Appl. 4th 1410 (1998), the Court considered the issue of traditional surrogacy agreements. That was a case where the surrogate mother has been artificially inseminated i.e. a surrogate mother was impregnated by using her ova and anonymous sperm, meaning thereby the intended parents had a genetic link to the child. Court held that when a married couple uses non-genetically related embryo and sperm implanted into a surrogate intended to procreate a child, they are lawful parents of the child. In another U.S case decided in 1998, In Re Marrijo Moschetta awarded legal parent rights to the intended father and surrogate mother. In another U.S case considered by the New Jersy Supreme Court, In Re Baby 537 A.2d 1227 (NJ.02/03/1988), gave custody to the natural father of the child, but rights of the adopted mother was denied. Surrogate mother who conceived the child via artificial insemination was granted visitation rights.
12. Japan has taken a different legal stand in respect of surrogacy. Supreme Court of Japan, on March 23, 2007, denied parenthood to genetic parents since the twin babies were born to a surrogate mother at United States. Interpreting the Civil Code of Japan, the Supreme Court, held a mother who physically gives birth to a child is the legal mother. There is no provision in the Code to recognize the genetic mother as the legal mother. There exists no specific laws in Japan concerning parent-child relationship for artificial insemination, and the mother - and - child relationship will be based on the fact of delivery. The issue of Citizenship status of such an infant is also a burning problem in Japan. The Japan Supreme Court rejected the Japanese commissioning parents bid to register their twins born to a U.S surrogate mother in Japan, on the ground that the law presumes the woman, who gives birth to a child as its mother.
13. Germany, as law stands today, does not recognize surrogacy agreements. Law also prohibits egg donation and advocates for embryo procreation. Medical practitioners are also prevented from performing artificial insemination or embryo donation, which are all criminal offences. Same seems to be the situation in Sweden, Norway, Italy and so on. But countries like Belgium, Netherlands and Great Britain are little more liberal. Reference may be made to the decisions of the High Court of Justice, Family Division, Rex & Y (Foreign Surrogacy) 2008 EWHC 3030 (Fam) U.K.
14. We have indicated, in India there is no law prohibiting artificial insemination, egg donation, lending a womb or surrogacy agreements. No civil or criminal penalties are also imposed. Public pressure, for a comprehensive legislation defining the rights of a child born out of surrogacy agreement, rights and responsibilities of a surrogate mother, egg donor, commissioning parties, legal validity of the surrogacy agreement, the parent child relationship, responsibilities of Infertility Clinic etc. are gaining momentum. Legislature will have to address a lot of emotional, legal and ethical issues. Question as to whether surrogacy can be seen as a ray of hope to otherwise a childless couple, so as to build up a family of their own, necessary for human happiness and social stability also calls for attention. Few are the case laws and precedents defining the rights of those who have a vital role to play in this reproductive technology. One case law worth mentioning in India is Baby Manje's case decided by the apex Court of India (2008) 13 SCC 518. Various issues which we have highlighted in this case were not discussed or answered in that case. That was a case where the Japanese Embassy in India refused to grant the child, born to surrogate Indian mother, VISA or Passport on the ground that the Japanese Civil Code recognizes a mother only to be a woman who gives birth to a baby. Attempts made to adopt Manji also did not fructify since Guardian Wards Act, 1890 did not allow single man to adopt those babies. Efforts were made to obtain Indian Passport, which also required a birth certificate. Question arose as to who was the real mother whether it was anonymous egg donor or the surrogate mother. Birth certificate was then issued by the local Municipality, by showing the father's name. Later the Regional Passport Office, Rajasthan issued a certificate of identity as part of a transit document and not the Passport. Certificate did not contain nationality, mother's name or religion of the baby.
15. Mother - child relationship is fraught with various problems, emotional, moral, ethical, legal, social etc. Study conducted by some organizations reveal that surrogate mothers have little difficulty in relinquishing their rights over a surrogate child to the intending parents and that the majority of surrogates are satisfied with their surrogacy experience and do not bother upon their bonding with the child they gave birth. Few other studies state that the surrogate mothers at time depict deep emotional attachment to the babies they give birth. Conflicting views have also been highlighted. Further elaboration on these ethical, psychological or moral issues are not necessary for our purpose.
16. We are in this case primarily concerned with the relationship of the child with the gestational surrogate mother, and with the donor of the ova. In the absence of any legislation to the contrary, we are more inclined to recognize the gestational surrogate who has given birth to the child as the natural mother, a view prevailing in Japan. Anonymous Indian woman, the egg donor, in our view, is not the natural mother. She has of course a right to privacy that forms part of right to life and liberty guaranteed under Article 21 of the Constitution of India. Nobody can compel her to disclose her identity. Babies born are not in a position to know who is the egg donor and they only know their surrogate mother who is real. Wife, of the biological father, who has neither donated the ova, nor conceived or delivered the babies cannot in the absence of legislation be treated as a legal mother and she can never be a natural mother. In our view, by providing ova, a woman will not become a natural mother. Life takes place not in her womb, nor she receives the sperm for fertilization. Human fertilization is the union of a human sperm and egg usually occurring in the ampulla of the urine tube. Process involves development of an embryo. Process in this case followed is In Vitro Fertilization, a process by which egg cells were fertilized by sperm outside the womb in vitro. Resultantly, the only conclusion that is possible is that a gestational mother who has blood relations with the child is more deserving to be called as the natural mother. She has carried the embryo for full 10 months in her womb, nurtured the babies through the umbilical cord. Even if we assume that the egg donor is the real natural mother, even then she is an Indian national so revealed before the learned Single Judge, we are told. Both the egg donor as well as the gestational surrogate are Indian nationals, and hence the babies are born to an Indian national.
17. The Registrar, Birth and Deaths functioning under the Registration of Births and Deaths Act, 1969 has already issued certificate of birth to the children stating that they are born within the local area of Anand Nagar Palika, and showing mother's name as Marthaben Immanuel Khristi and father's name as the petitioner. Be that as it may, for the purpose of issuance of the Birth Certificate. Factum of birth of the babies has been established and that too in India to an Indian mother, whether to a gestational surrogate or donor of an ova. In the application for Passport, we have already indicated that petitioner has shown 'Khristi Marthaben Immanuel' as mother gestational surrogate who is admittedly an Indian national. Egg donor is also reported to be an Indian woman, of course her identity is not disclosed. Either way the mother of the babies is an Indian national. Petitioner, it is true, has not married Khristi Marthaben Immanuel, surrogate mother of the children or the egg donor. Children are born not out of a subsisting marriage. Even if the children are described as illegitimate children, even then they are born in this country to an Indian national and hence, they are entitled to get Citizenship by birth as per Section 3(1)(c)(ii) of the Citizenship Act, 1955, since one of their parent is an Indian citizen. Relevant portion of Section 3 is extracted hereunder for easy reference.
3. Citizenship by birth - (1) Except as provided in sub-section (2), every person born in India, --
(c) on or after the commencement of the Citizenship (Amendment) Act, 2003, where --
(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time of his birth, shall be a citizen of India by birth.
Section 3 uses the expression 'every person born' and the emphasis is on the expressions 'person' and 'born'. 'Person' means a natural person. In Webster v. Reproduction Health Services etc. (1989) 492 U.S. 490, the Court held the word 'personal' within 14th Amendment means a human being after birth and not a foetus. Black's Legal Dictionary, Sixth Edition defines the word 'born' as an act of being delivered or expelled from mother's body whether or not placenta has been separated or cord cut. Both the babies in this case are persons born in India, indisputedly one of their parents is an Indian citizen, a surrogate mother. The two babies have therefore satisfied the ingredients of Section 3(1)(c)(ii) and hence they are Indian citizens by birth. Passport to travel abroad therefore, cannot be denied to those babies, who are Indian citizens, which would otherwise be violative of Article 21 of the Constitution of India. Section 6 of the Passport Act refers to the grounds for refusal of Passport. Section 6(2)(a) says that Passport can be denied if the applicant is not a citizen of India. In the instant case, we have already found that two babies born to the surrogate mother are Indian citizens by birth and hence entitled to get Passports.
18. Passport Authorities are willing to issue a certificate of identity under Section 4(2)(b) of the Passports Act, which is issued only for the purpose of establishing the identity of a person. In the instant case, the identity of the two babies has already been established, they are born in this country to a surrogate mother, an Indian national, and hence citizens of India within the meaning of Section 3(1)(c)(ii) of the Citizenship Act.
19. A comprehensive legislation dealing with all these issues 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. Views expressed by us, we hope, in the present fact settings, will pave way for a sound and secure legislation to deal with a situation created by the reproductive science and technology. Legislature has to address lot of issues like rights of the children born out of the surrogate mother, legal, moral, ethical. Rights, duties and obligations of the donor, gestational surrogate and host of other issues.
20. Further, under the Indian Evidence Act, no presumption can be drawn that child born out of a surrogate mother, is the legitimate child of the commissioning parents, so as to have a legal right to parental support, inheritance and other privileges of a child born to a couple through their sexual intercourse. The only remedy is a proper Legislation drawing such a presumption including adoption. Further the question as to whether the babies born out of a surrogate mother have any right of residence in or citizenship by birth or mere State orphanage and whether they acquire only the nationality or the biological father has to be addressed by the legislature.
21. Indian Council of Medical Research (ICMR) has issued certain guidelines on surrogacy and Assisted Reproductive Technology (ART) in 2005. The new Bill ART (Regulation) Bill and Rules, 2008 is yet to become law, and there is extreme urgency to push through the legislation answering all these issues.
22. We, in the present legal frame-work, 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 Passports and therefore direct the Passport Authorities to release the Passports withdrawn from them forthwith.
23. Special Civil Application is accordingly allowed. Appeal and the Civil Application stand disposed of accordingly. Interim orders stand vacated.