This is the update pertaining to the French case of Dominique Mennessan and Sylvie. The earlier post on the decision of the Court of Appeals is here.

The Supreme Court of France, which is the highest judicial forum in France, (Court of Cassata) had turned down the application by the couple for inclusion of the names of their twin daughters in the French registry. The twins were born ten years ago through surrogacy in the month of October 2000.  Isa and Leah have a birth certificate indicating that American parents are Menesson, but the French Government challenged transcription of these documents. The couple is fighting, since the birth of twins, for that French law recognizes their parentage.

The couple has been struggling for 10 years with the legal procedures for including the names of twin children in the French registry.  The Court of Appeal, too, had not recognised the children to be French citizens. The children were born to an American surrogate mother, Mary.  She gave birth to Isa and Leah from the embryos created from sperm from Dominique and the egg from a friend.

France does not allow surrogacy, practice to be carried by another woman, for a fee, an embryo conceived in vitro. In this case, the embryo has been conceived with sperm from the joint French, Dominique Menesson, and the oocyte from a friend of the couple. Dominique, the husband, however retains a recognition of parentage of their child through official documents issued in the United States.On the birth of the twin children, their birth certificates were prepared in accordance with the Californian Law.  The couple have been considered to be the legal parents as per the United States authorities, but not by the French authorities.

In France, the woman who gives birth to the children is considered to be the legal mother of the child.  This being so, French Law does not recognize surrogacy arrangements.  According to Court of Cassata, the father of the children, Mennessan is the legal father of the child due to the biological connection.  However, the commissioning mother, Sylvie is not considered the legal mother of the children.  For all practical reasons, the children are considered as living with two different parents.

The German Couple who had a tiring journey through the Indian Judicial System in a bid to travel back to their homeland with the twin children finally have crossed the first step. The German Government had granted VISA for the children to be brought to Germany. The Central Adoption Resource Agency (CARA) had earlier agreed that it would issue a No Objection Certificate for the adoption of the children. With what can be seen, the children have to be adopted (or something similar) by the German Couple in Germany. The Union of India had given the Exit Permit for the children to be taken to Germany.

The children remain stateless yet. The Union of India had only granted the Exit Permit to the children and not a citizenship. I do not see a change of scenario as far as nationality is concerned. However, the change in attitude of the German Government is seen by issuance of the VISA. The German Couple now have an opportunity to fight for their rights at judicial forums in Germany for the citizenship of the children. The German Government had always remained steadfast to its view that familial ties arising out of a surrogacy agreement cannot be valid in law. German Government was also very precautious that the Jan Balaz’s case should be a precedent for other Germans to take up surrogacy abroad.

The German Couple may be required to adopt the twin children in Germany. This would pave way for the twin children to obtain German Citizenship. However, the Balaz Family has percolated through the first step with the guidance and aid of the Supreme Court of India.

When the appeal was filed before the Supreme Court of India, the court did not have much in its hands as the issue largely involved the policy of two states, Germany and India. Germany and India had conflicting policies with regard to surrogacy.

India was unable to grant citizenship to the twins born through surrogacy. The acquisition of citizenship by birth under the Indian Citizenship Act, 1955 requires either one or both of the parents of the child to be Indian Citizens at the time of birth of the child. In the case on hand the children did not have an Indian National Parent. The contention of the German Couple was that the children born to an Indian surrogate mother using the gamete from an Indian anonymous egg donor is India; and that the surrogate mother was required to be regarded as the legal mother of the children. This contention had got the sympathetic eyes of the High Court of Gujarat, which agreed that the surrogate mother should be regarded as the legal mother of the child. The Gujarat High also directed the Union of India to grant citizenship and passport for the children enabling them to travel abroad.

The scenario took a complete change when the Union of India rushed to the Supreme Court of India challenging the verdict of the High Court of India. The Supreme Court of India seemed unmoved by the plea of the German Couple. The Solicitor General had time again stood stead fast to his argument that children born to a surrogate mother cannot be provided with Indian Citizenship.

I personally feel that the arguments which could have strengthened the stand of Union of India, but which was not presented is as follows:

(a) The Supreme Court of India in its earlier decision of Baby Manji (Japanese baby) held that the surrogacy agreement is valid in law.

(b) Any basic surrogacy agreement is required to contain the clause that the surrogate mother relinquishes her rights over the child, which is born to her.

(c)  The surrogacy agreement has to be enforced by a court of law. In the absence of any law to the contrary, the surrogacy agreement should control the conduct of the parties and a contrary view cannot be taken.

(d) Where the court takes an opinion, which is unfounded in law and in the surrogacy agreement, it would amount to legislating of a new principle.

(e) Concluding, in absence of law to the effect that the surrogate mother is the legal mother of the child, the court cannot bring out this new theory.

(f)  India does not have a legal mechanism whereby the parental rights of the surrogate mother would be transferred to the intended parent.

However, the above argument was not presented before the Supreme Court of India in support of the Union of India.

The Supreme Court of India successfully guided the German Couple through the legal maze. The Supreme Court of India had also recommended the emergent legislation of a law on surrogacy. The Bench headed by Justices G.S. Singhvi and C.K. Prasad said that no surrogate child should undergo the difficulties faced by Nicolas and Leonard.