Germany allows couple to bring surrogate kids home

The two-year-long saga of a German couple wanting to take its surrogate twins — born to an Indian woman in Gujarat — back to native country has come to an end. Germany, where surrogacy is anathema, reluctantly granted them visa while New Delhi facilitated their travel back home.

The Supreme Court (SC), which has been seized of the petitions filed by the government and the couple — John Balaz and Susan Lohle — two years ago, wished luck to the kids — Leonad and Nicolas — on Wednesday.

The couple has been litigating for the right of their surrogate kids to get Indian citizenship as they were born through surrogate mother Martha Immanual Khristy in 2008.

Without Indian citizenship, the twins would not get entry into Germany, where surrogacy is an offence.

Solicitor general (SG) Gopal Subramanium had earlier told the bench that under the existing rules, the German couple couldn’t be granted adoption rights as such a privilege was available only if the children are abandoned by their biological parents.

In the present case, the government said the children were born through a surrogate mother and there was no provision in the law for inter-country adoption of the children.

The government, however, offered to examine the couple’s plea for adoption as a special case, provided it was not treated as a precedent.

The SC bench comprising justices GS Singhvi and CK Prasad expressed hope that parliament would enact an appropriate law to clarify the country’s legal position relating to the citizenship rights of a surrogate child born to an Indian woman but commissioned by foreign parents.

Responding to the court’s concern, SG said he had already written to the Centre to enact requisite law to avoid such tricky situations.

The government is examining the recommendations made by the law commission two years ago.

The commission had recommended giving legal sanction to surrogacy while prohibiting its commercial use by making it mandatory for one of the parents to be a donor.

“Non-intervention of law in this knotty issue will not be proper at a time when the law is to act as an ardent defender of human liberty and an instrument of positive entitlement,” the commission’s chairperson justice AR Lakshmanan said.

“If reproductive right gets constitutional protection, surrogacy, which allows an infertile couple to exercise that right, also gets the same protection,” it said.

The commission isn’t opposed to putting any kind of ban on surrogacy since it comes as a boon for childless couples.

“Prohibition on vague moral grounds without proper assessment of social ends and purposes which surrogacy can serve would be irrational,” it said.