http://timesofindia.indiatimes.com/india/German-couples-surrogate-kids-may-end-up-stateless/articleshow/5340835.cms
German couple’s surrogate kids may end up stateless
Dhananjay Mahapatra, TNN 16 December 2009, 03:36am IST
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NEW DELHI: The Supreme Court's worst apprehension appears to have come true. The surrogate twin babies of a German couple have virtually become
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"stateless citizens" with India refusing them citizenship and Germany not ready to recognise surrogacy as a means of parenthood.
Finding the surrogate babies caught in no man's territory on legal grounds for no fault of theirs, a Bench comprising Justices G S Singhvi and A K Ganguly vented its anguish, "Should we treat children born out of surrogacy as commodities?"
This slashing remark came after the couple -- Jan Balaz and Susan Lohle -- could give no final word to the SC whether the twins could get German citizenship in the event that India did not agree to grant citizenship to them.
But the Bench did not want to keep hanging the surrogate children's fate and firmly said that it was in favour of devising a mechanism to ensure that surrogate babies were not treated as commodities.
"Statelessness cannot be clamped upon the children. There must be some mechanism by which they get citizenship of some country. Children should be allowed to leave the country after an assurance of their citizenship has been given," the Bench said.
Solicitor general Gopal Subramaniam appeared to have been caught in a legal dilemma and attempted to put forth the government's predicament before the Bench. "This gentleman (Jan Balaz) has come to India without making proper enquiry. He made no attempt to find out the status of surrogate children and entered into an agreement with a surrogate mother. The German law does not recognise surrogate children. Now, how can the child be given passport for statelessness?"
Not to leave the matter without finding a proper solution, the Bench posted it for hearing on Thursday and asked the German couple to give a specific undertaking -- one relating to the citizenship status of their surrogate children and secondly, in the alternative, an undertaking to initiate formal adoption proceedings.
"If there is reasonable certainty of the children getting citizenship, only then we will direct the ministry of external affairs (MEA)," the Bench said, adding that else, the couple could initiate formal adoption proceedings.
Treating this as a special case, the SG agreed to request MEA to take up the matter with the German consulate, to interview the couple and get an assurance about the children.
However, the SG also raised certain questions -- what would be the fate of the children even if an Indian passport was to be granted? What happens if the babies are picked and sent for slave labour?
Brushing aside the SG's apprehensions, the Bench was unwilling to assign the Centre the role of a mute spectator in this emotive real-life drama and abdicate its share of responsibility.
"We want to know since when this matter has been debated in public or even in the media. We are on a side issue of judicial activism. In such matters, the people's representatives should step in to preserve the interest of the people, as this involves largely poverty-stricken people. But if this area remains unoccupied with both the legislature and executive having not stepped in, under the Constitution, who should step in," the Bench said.
Subramaniam lost no time in saying "surely, it is the courts" and admitted that the issue of surrogacy was in the domain of public debate for over three years.
dhananjay.mahapatra@timesgroup.com