The curious case of Nikolas and Leonard Balaz

The Supreme Court, while hearing an appeal for the grant of Indian passports to twins born to an Indian surrogate mother, expressed its intention of looking into the practice of surrogacy and framing guidelines to prevent the exploitation of poverty-stricken Indian women who opt to become surrogate mothers. The Court issued directions to the Centre to submit suggestions for the framing of these guidelines.

Little did Jan Balaz and his wife, Susanne Anna Lohle know that they would eventually be setting legal precedent when they came to Anand, Gujarat to take their twin children- born to surrogate mother Marthaben Immanuel Khristi- back home to Germany.

The Ministry of External Affairs, through the Regional Passport Office, had initially granted a passport to the twins under the 'tatkal' scheme. However, the Ministry of External Affairs later issued a notice withdrawing the passports.

Considering that surrogacy is not recognized in Germany, the Balaz twins cannot get German citizenship if they are not first recognized as Indian citizens. The twins, now almost two years old, have been 'stateless' for the last two years.

Balaz appealed the notice before the Gujarat High Court, which sought to answer the question of whether a child born in India to a surrogate mother, an Indian national, whose biological father is a foreign national, would get Indian citizenship by birth.  A Bench comprising Chief Justice K.S. Radhakrishnan and Justice Anant Dave held that babies born in India to the gestational surrogate are citizens of this country and therefore, entitled to get an Indian Passport.

The Government of India appealed the matter, and the matter came up before the Supreme Court of India yesterday. "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," said the Bench comprising Justices G.S. Singhvi and A.K. Ganguly.

Posting the matter to December 17, the Bench assured Senior Counsel L.N. Rao, appearing for Jan Balaz, that they would direct the Passport Office to issue necessary documents, "if you can show they will be given [German] citizenship." The Bench also sought an undertaking from the German couple in relation to the citizenship status of the surrogate children in Germany or initiate formal proceedings in Germany. "If there is reasonable certainty of the children getting citizenship, only then we will direct the Ministry of External Affairs [to issue passports]," said the Bench.

The Court also expressed its intention of looking into the practice of surrogacy and framing guidelines to prevent the exploitation of poverty-stricken Indian women who opt to become surrogate mothers. The Court issued directions to the Centre to submit suggestions for the framing of these guidelines.

Advocates Dhaval Dave and P.A. Jadeja appeared for Balaz in the Gujarat High Court. Senior Counsels Dushyant Dave and L.N. Rao, assisted by Dhaval Dave, Nikhil Goel, Sheela Goel and Marsook Bafaki appeared on behalf of Balaz in the Supreme Court. The Government of India was represented by Solicitor General Gopal Subramaniam and Additional Solicitor General Harin P. Raval, who were assisted by Wasim Quadri, Anil Katiyar, Gargi Khanna and Saima Bakshi.