I am making this post partly from the Supreme Court of India. The case was posted before the Bench consisting of G S Singhvi and A K Ganguly. The Solicitor General of India, Mr. Gopal Subramanian unfolded India’s stand that India is unable to grant Indian Citizenship to a children merely for the purpose of taking them to their homeland. Moreover, he wanted the German Couple, Mr. Jan Balaz to unconditionally submit himself to the Jurisdiction of the Apex Court even if he moves outside India. Senior Counsel Mr. Rao said he shall undertake to fulfil all conditions as imposed by the Union of India in order to take his children back to his nation. The case is next posted for hearing on the 4th January 2010. There are lots of unanswered hitches which are to be decided by the Supreme Court of India. Meanwhile, Indian Surrogacy Law Centre is still deciding it’s modalities of contributing for this case. I shall write on this subject more when there is an improvement.

24 Thoughts on “Updates on German Couple Surrogacy, Jan Balaz Case

  1. sriram srirangam on March 18, 2010 at 10:30 pm said:

    Would like u to talk of the citizenship related issues in detail. The current case relates to German laws. How are `parents’ of other countries managing?

    Tx

  2. sriram srirangam on March 18, 2010 at 10:30 pm said:

    Would like u to talk of the citizenship related issues in detail. The current case relates to German laws. How are `parents’ of other countries managing?

    Tx

  3. sriram srirangam on March 18, 2010 at 10:30 pm said:

    Would like u to talk of the citizenship related issues in detail. The current case relates to German laws. How are `parents’ of other countries managing?

    Tx

  4. @ Sriram Srirangam, I shall be making a post on that discussing the legal intricacies in citizenship issues very soon.

  5. @ Sriram Srirangam, I shall be making a post on that discussing the legal intricacies in citizenship issues very soon.

  6. @ Sriram Srirangam, I shall be making a post on that discussing the legal intricacies in citizenship issues very soon.

  7. @ Sriram Srirangam, I shall be making a post on that discussing the legal intricacies in citizenship issues very soon.

  8. @ Sriram Srirangam, I shall be making a post on that discussing the legal intricacies in citizenship issues very soon.

  9. Surendar on March 20, 2010 at 11:03 am said:

    Mr. Hari, in Jan Balaz’s case I’m not able to see any justification in the stand of the Govt., when the mother of the babies (either surrogate or biological) is an Indian. As one of the parents is an Indian there should not be any problem with their citizenship and with issuing Passport. Do you think that the stand of the Govt., that passport cannot be granted merely for taking the babies to thier homeland is right, especially when the babies stricly speaking are the Indian Citizens under the Citizenship Act? Can the Govt., travel beyond the expressed provisions of law and deny the statutory right, merely on the premise that the passport is sought in order to facilitate some other purpose? Kindly clarify me in this regard.

    • @ Surendar,

      Thank you for your resourceful comment. I think you have not understood the question of law before the Supreme Court at this moment. According to the surrogacy agreement entered between the surrogate mother and intended parents, the surrogate mother had agreed to relinquish the rights she had over the child. This agreement’s entered even before the implantation of the embryo in the surrogate mother’s womb. Arguments stating that the surrogate mother is the legal mother and not intended parents for the purpose of citizenship of the child is derogatory of the surrogacy agreement itself. Since the Supreme Court had already held in Manji’s case that the surrogacy agreements are valid in law, can the Supreme Court be without giving effect to the terms as found in the agreement? This is the exactly legal position.

      In your question you have presumed that the surrogate mother is the legal mother of the child. When you have a surrogacy agreement to the contrary, how do you make this claim?

      Thank you for posting your views.

      G R Hari,
      Partner, ISLC

  10. Surendar on March 20, 2010 at 11:03 am said:

    Mr. Hari, in Jan Balaz’s case I’m not able to see any justification in the stand of the Govt., when the mother of the babies (either surrogate or biological) is an Indian. As one of the parents is an Indian there should not be any problem with their citizenship and with issuing Passport. Do you think that the stand of the Govt., that passport cannot be granted merely for taking the babies to thier homeland is right, especially when the babies stricly speaking are the Indian Citizens under the Citizenship Act? Can the Govt., travel beyond the expressed provisions of law and deny the statutory right, merely on the premise that the passport is sought in order to facilitate some other purpose? Kindly clarify me in this regard.

    • @ Surendar,

      Thank you for your resourceful comment. I think you have not understood the question of law before the Supreme Court at this moment. According to the surrogacy agreement entered between the surrogate mother and intended parents, the surrogate mother had agreed to relinquish the rights she had over the child. This agreement’s entered even before the implantation of the embryo in the surrogate mother’s womb. Arguments stating that the surrogate mother is the legal mother and not intended parents for the purpose of citizenship of the child is derogatory of the surrogacy agreement itself. Since the Supreme Court had already held in Manji’s case that the surrogacy agreements are valid in law, can the Supreme Court be without giving effect to the terms as found in the agreement? This is the exactly legal position.

      In your question you have presumed that the surrogate mother is the legal mother of the child. When you have a surrogacy agreement to the contrary, how do you make this claim?

      Thank you for posting your views.

      G R Hari,
      Partner, ISLC

  11. Surendar on March 20, 2010 at 11:03 am said:

    Mr. Hari, in Jan Balaz’s case I’m not able to see any justification in the stand of the Govt., when the mother of the babies (either surrogate or biological) is an Indian. As one of the parents is an Indian there should not be any problem with their citizenship and with issuing Passport. Do you think that the stand of the Govt., that passport cannot be granted merely for taking the babies to thier homeland is right, especially when the babies stricly speaking are the Indian Citizens under the Citizenship Act? Can the Govt., travel beyond the expressed provisions of law and deny the statutory right, merely on the premise that the passport is sought in order to facilitate some other purpose? Kindly clarify me in this regard.

    • @ Surendar,

      Thank you for your resourceful comment. I think you have not understood the question of law before the Supreme Court at this moment. According to the surrogacy agreement entered between the surrogate mother and intended parents, the surrogate mother had agreed to relinquish the rights she had over the child. This agreement’s entered even before the implantation of the embryo in the surrogate mother’s womb. Arguments stating that the surrogate mother is the legal mother and not intended parents for the purpose of citizenship of the child is derogatory of the surrogacy agreement itself. Since the Supreme Court had already held in Manji’s case that the surrogacy agreements are valid in law, can the Supreme Court be without giving effect to the terms as found in the agreement? This is the exactly legal position.

      In your question you have presumed that the surrogate mother is the legal mother of the child. When you have a surrogacy agreement to the contrary, how do you make this claim?

      Thank you for posting your views.

      G R Hari,
      Partner, ISLC

  12. Surendar on March 20, 2010 at 11:03 am said:

    Mr. Hari, in Jan Balaz’s case I’m not able to see any justification in the stand of the Govt., when the mother of the babies (either surrogate or biological) is an Indian. As one of the parents is an Indian there should not be any problem with their citizenship and with issuing Passport. Do you think that the stand of the Govt., that passport cannot be granted merely for taking the babies to thier homeland is right, especially when the babies stricly speaking are the Indian Citizens under the Citizenship Act? Can the Govt., travel beyond the expressed provisions of law and deny the statutory right, merely on the premise that the passport is sought in order to facilitate some other purpose? Kindly clarify me in this regard.

    • @ Surendar,

      Thank you for your resourceful comment. I think you have not understood the question of law before the Supreme Court at this moment. According to the surrogacy agreement entered between the surrogate mother and intended parents, the surrogate mother had agreed to relinquish the rights she had over the child. This agreement’s entered even before the implantation of the embryo in the surrogate mother’s womb. Arguments stating that the surrogate mother is the legal mother and not intended parents for the purpose of citizenship of the child is derogatory of the surrogacy agreement itself. Since the Supreme Court had already held in Manji’s case that the surrogacy agreements are valid in law, can the Supreme Court be without giving effect to the terms as found in the agreement? This is the exactly legal position.

      In your question you have presumed that the surrogate mother is the legal mother of the child. When you have a surrogacy agreement to the contrary, how do you make this claim?

      Thank you for posting your views.

      G R Hari,
      Partner, ISLC

  13. N. Cheerala Prasad, Advocate on March 26, 2010 at 10:08 pm said:

    There should not be a nationality issue in case of international surrogacy. Because the draft bill,2008 and law commission report, 229 allow and permit commercial and inter country surrogacy. When India and its draft law is permitting inter country surrogacy, there should not be any legal problems. The surrogate child shall acquires automatically his nationality either through surrogate mother or from the commissioning couples. So where is the question of adoption of surrogate child by the commissioning parents who are biologically related to the child.
    Please confirm.
    Thanking you.

  14. N. Cheerala Prasad, Advocate on March 26, 2010 at 10:08 pm said:

    There should not be a nationality issue in case of international surrogacy. Because the draft bill,2008 and law commission report, 229 allow and permit commercial and inter country surrogacy. When India and its draft law is permitting inter country surrogacy, there should not be any legal problems. The surrogate child shall acquires automatically his nationality either through surrogate mother or from the commissioning couples. So where is the question of adoption of surrogate child by the commissioning parents who are biologically related to the child.
    Please confirm.
    Thanking you.

  15. N. Cheerala Prasad, Advocate on March 26, 2010 at 10:10 pm said:

    Please amend to read Law commission report 228 instead of 229.

  16. N. Cheerala Prasad, Advocate on March 26, 2010 at 10:10 pm said:

    Please amend to read Law commission report 228 instead of 229.

  17. N. Cheerala Prasad, Advocate on March 26, 2010 at 10:10 pm said:

    Please amend to read Law commission report 228 instead of 229.

  18. @ N. Cheerala Prasad, Advocate

    Thank you for you the comment. I only wish that things are as simple as you consider them to be. Issues of Nationality has a lot of weight in surrogacy cases due to differential citizenship and nationality laws in every state is different. The Report of the law commission or the draft law on surrogacy do not have any value as those are not laws which have been passed by the parliament and which have obtained the assent of the President. These documents are not enforceable.

  19. @ N. Cheerala Prasad, Advocate

    Thank you for you the comment. I only wish that things are as simple as you consider them to be. Issues of Nationality has a lot of weight in surrogacy cases due to differential citizenship and nationality laws in every state is different. The Report of the law commission or the draft law on surrogacy do not have any value as those are not laws which have been passed by the parliament and which have obtained the assent of the President. These documents are not enforceable.

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