May 12, 2012

Stateless Orphans

Stateless Orphans? : Citizenship rights of children born through Artificial Reproductive Techniques

Abstract: Every state has its own criteria for granting citizenship and recognising the rights that ensue. In case of children born on a soil different from that of their biological parents’, the conflict of which nationality are they to be governed by arises. Through selected case studies of surrogate children in India, this essay assesses some areas of concerns regarding citizenship, surrogacy, legal adoption and freedom of movement.


The essay begins with a brief introduction to the concept of citizenship and the contesting claims surrounding it. This is followed by a short discussion on the types of surrogacy and children born through Artificial Reproductive Techniques (ART). The claims of citizenship evoke deep concerns, and these get particularly enhanced in cases of children born through surrogate mothers. I attempt to outline this contention by citing two cases of surrogate children whose movement right after their birth was struck upon by these complex norms of citizenship, right after their birth. The differing criterion for granting citizenship and contesting claims of parentage are played out on the young child, I argue, in gross violation of his/her basic human right. In this essay, I will try to bring out the dilemmas that a new-born is subjected to when his/her being acts as a site of intersection of contrary norms of parentage and citizenship between countries.
The concept of ‘citizenship’ entails numerous interpretations and affiliations, leading it to be one of the most contested issues in modern political, social and cultural life. In lay understanding, citizens are those members of a nation-state who have legal and political rights. These rights are granted on the basis of numerous qualifying criteria and instantly differentiate them from others who may be residing in the same territory but don’t have these rights. On deliberation, it appears that every geographical entity (state) has its own criteria for granting recognition to residents and these are, without exception, fraught with contesting claims. According to Brubaker (2004), ‘The nation-state remains a decisive locus of power in world affairs; it is the only major locus of power with the public sphere and institutional forms, however imperfect, that permit some degree of meaningful and effective civic participation’ (Brubaker 2004:124). This argument lays emphasis on the decisive role of state in granting (or withdrawing) rights of citizenship and the benefits that follow thus.
Surrogacy is the result of developments in medical science which have now enabled couples who cannot have their biological offspring through natural processes, to opt for scientific assistance in achieving their ends. ‘The word ‘surrogate’ has its origin in Latin ‘surrogatus’, past participle of ‘surrogare’, meaning a substitute, that is, a person appointed to act in the place of another1. If a woman is not able to conceive through natural ways then methods like artificial insemination or in-vitro fertilisation (ART) may be used. In many cases, women may be medically unfit to bear a child. It is in cases like these that surrogacy appears as an option. Though, there have also been numerous cases of gay couples opting for surrogacy to have off-springs that are genetically linked to them by at least one parent.
In case of genetic surrogacy, the sperm belongs to a male and the egg is of the woman who bears the pregnancy for its entire duration. Gestational surrogacy involves the surrogate carrying the embryo with genetic material (sperm and egg) of the commissioning couple, or either sperm/egg of another (usually anonymous) donor. ‘The first gestational surrogacy procedure was reported in 1985 (Usain et al., 1985)’ (Palattiyil et al., 2010:689).  In the past two decades, Rai (2011) argues that India has become a hot destination not only for IT services but also health and medical tourism, owing to the low costs involved. Anand, in Gujarat has seen a mushrooming of IVF clinics turning it into a ‘centre of commercial surrogacy’ (Rai 2011:151). 
Surrogate motherhood involves numerous legal, ethical, medical and health concerns, both for the surrogate as well as the child thus born. The next section gives a brief glimpse of the contractual norms applicable to such procedures. Surrogacy laws of some other countries are also mentioned. Owing to the availability of considerable literature, it is deeply tempting to launch into a long argument about rights of the surrogate mother, but that issue is not the core concern of this essay. Hence, there is a discussion of selected cases from India, which brought to fore various issues regarding claims of parenthood and granting the rights of citizenship to children born through surrogate mothers.

Conflicting norms of surrogacy and citizenship
            In this section, I will discuss two cases, from not so far back in time, of surrogate children who bore the brunt of uncertainty over their citizenship status, until the Supreme Court (SC) of India passed a judgment making way for their smooth passage out of their country of birth to their country of descent. With this discussion, I hope to highlight the differences in various laws of granting citizenship, which in turn affect the official status of new-borns, for no fault of theirs.
            The first case is of Manji Yamada who was born to an Indian surrogate mother in Anand, Gujarat in mid-2008. The biological parents of this child were both Japanese citizens and had commissioned a surrogate mother via one of the many infertility clinics in Anand. A month before the birth of this child, the parents divorced and the biological mother refused to claim any parentage rights over the child. The surrogate mother also did not want to claim the child as her own. There were numerous legal snares in this case which complicated the travel of Baby Manji to her parents’ country and I will mention them in brief. A passport happens to be the most important document required for legally moving across international borders. In this case, Baby Manji could not be issued an Indian passport as her parents were not Indians. Also, in India, an infant’s passport is linked to that of their mother, which was not possible in this case. The child was issued a birth certificate by the Anand municipality, but it wasn’t the valid document permitting international travel. The Japanese embassy refused to issue a passport to Baby Manji as she was born in India. Hence, she needed an Indian passport and a no-objection-certificate (NOC) to travel to Japan. All of these reasons were a key factor in deciding the status of Baby Manji’s citizenship. For nearly three months, she was, ‘stateless’ and ‘orphan’2.
            An option available in such a case is that the parent/s (foreign citizen/s) legally adopts the child enabling their travel to the parents’ country. Adoption laws in India do not permit single male to adopt a child. Hence, Baby Manji could not be adopted by her biological father. In the midst of this legal mayhem, Baby Manji’s paternal grandmother came to India and claimed the parentage of this child on grounds of her being a biological kin. Another complication arose when an NGO in Jaipur raised objections about Baby Manji’s grandmother laying claim over the child as there were no laws for surrogacy in India, and also against the child being allowed travel with her biological father, arguing that this would be a case of human trafficking! The case went up to the SC which ruled in favour of the Yamadas and directed the regional passport office to issue a certificate of identity (issued to people who are stateless or cannot get a passport from their own country) which is valid for a year and allowed her to travel only to Japan. The Japanese embassy also granted visa to Baby Manji on humanitarian grounds, allowing her transit to Japan with her paternal grandmother.
            The nuances of this case threw open for consideration the wide gaps in legal provisions for recognising and regulating advances in medical science (surrogacy, in this case). In keeping with our bigger theme of citizenship, Baby Manji’s case highlighted the plight of children entangled in a web of conflicting norms of recognising them as citizens, across countries. This resulted in her having to bear the miserable tag of ‘stateless orphan’, even if for a short while. To be labelled thus was an affront on the basic dignity and human right of a new-born child, for no fault of theirs. The complex conditions regulating movement across borders are almost entirely dependent on the citizenship status of individuals. Baby Manji’s plight was furthered by the fact that she was an ‘alien’ in the country where her birth was ‘legal’. What a sad paradox would it be, to have been recognised as being born on a land while simultaneously being stateless and alien on the same land!
            The second case discussed here is also from 2008 of a German heterosexual couple, also recruiting a surrogate mother in Anand, Gujarat. The wife, Susan Lohle was unable to reproduce egg/s for having a biological child through surrogacy with her husband, Jan Balaz. They got an anonymous donor’s ova which was fertilised with the sperm of Balaz and successfully implanted in the womb of the surrogate mother. After the birth of twins in mid-2008, the municipality issued a birth certificate to these twins stating the father’s name as Jan Balaz and the mother’s name as that of the surrogate. With this document, an application for issuing of Indian passports for the twins was made. While the passports were issued, they were later recalled by the passport office. The reason for this is stated in Jan Balaz v/s Union of India, stating that,
surrogate mother cannot be treated as mother of the babies, and children born out of surrogacy, though in India, cannot be treated as Indian citizens within the meaning of Section 3 of the Citizenship Act, 1955. Further it is also stated that parents of the children are not Indian citizens and therefore, children are also not Indian citizens as per Section 3(1) (b) of Citizenship Act, 1955. Further it is also stated that as per Passport Act, 1967, only Indian citizens can apply for Indian Passport and as per Section 6 (2) (a) of the Act, Passport cannot be issued to non-citizens. Further it is also stated that as per direction of the Government of India, Ministry of External Affairs, Passport Authority can issue identity certificate, showing name of surrogate mother, which does not entail citizenship to the children but would enable him to take his children out of India. Further, it was also pointed out that the Central Government is yet to legalize surrogacy and hence, children born out of surrogacy, though in India, cannot be treated as Indian citizens (ibid.).
This argument clearly points to the principle of jus sanguinis followed by the Indian state in recognising individuals as citizens of the country and granting them citizenship rights (Roy, 2010). The counsel for the couple countered this argument by citing Section 3(1)(c)(ii) of the Indian Citizenship Act, 1955. The argument was based on the ground that the ova belonged to an anonymous Indian donor and the surrogate mother was an Indian citizen, hence the twin babies have the right to be granted citizenship on the basis of the descent principle.
This case brought to fore an insight on the varied norms for or against surrogacy prevalent in some other countries of the world. The Balaz couple’s case was complicated by the fact that they held German passports but were working in the UK and were desirous of settling down in UK. The UK consulate was not willing to grant visa to the couple’s twin born through surrogacy, unless they had Indian passport since they were born in India. Eventually the couple wished to apply for German citizenship for their twins. The sorting of this knotted web of citizenship and travel laws of various countries is discussed in the next section.

Global scenario
The Jan Balaz v/s Union of India (2009) case provided an insight into the range of laws regarding citizenship status of children born through surrogacy. Most states in the USA have clear laws regarding surrogacy contracts and providing legal recognition and citizenship status to surrogate children. Ukraine’s law formally recognises surrogacy, has norms regarding surrogacy contracts and fully support the reproductive rights of the individuals.
Ukraine laws permit commissioned parents to choose the gestational surrogacy, ova, or sperm donation embryo, adoption, programmes for which no permission is required. Legislation also provides for a commercial surrogacy agreement between the parties. Child born legally belongs to the commissioned parents and the surrogate mother cannot keep the child to herself (ibid.).
Japan does not recognise surrogacy as a means of birth and hence children thus born are not given citizenship rights. The Civil Code of Japan is usually interpreted to give legal status of motherhood to the woman who physically gives birth to a child. There is no provision in the Code to recognize the genetic mother as the legal mother.
Germany, as law stands today, does not recognize surrogacy agreements. Law also prohibits egg donation and advocates for embryo procreation. Medical practitioners are also prevented from performing artificial insemination or embryo donation, which are all criminal offences. Same seems to be the situation in Sweden, Norway, Italy and so on. But countries like Belgium, Netherlands and Great Britain are little more liberal (ibid.).
Storrow (2011) notes that,
Turkey prohibits using donor gametes in assisted reproduction (Jones et al., 2010). Recently it revised its regulations to assert criminal law jurisdiction over Turkish citizens who travel abroad to acquire donor gametes. The law also criminalizes brokers, physicians and donors who assist Turkish reproductive travellers. This extraterritorial assertion of jurisdiction is an attempt to prevent a Turkish child’s ancestry from becoming obscured through gamete donation abroad (Gu¨rtin-Broadbent, 2010; Urman and Yakin, 2010) (2011:541).

The laws in United Kingdom allow for only altruistic surrogacy and commercial surrogacy is not recognised. In the case of twins born through surrogacy to the Balaz couple, the Gujarat High Court directed the passport office to return the passports of the twin children. The couple went on to legally adopt the twins, as they wanted to apply for German citizenship of these children. It would not have been possible otherwise because, as stated earlier, Germany does not recognise children born through surrogacy. The country follows a principle of jus sanguinis, wherein children can acquire German citizenship only if a parent is a German citizen, irrespective of their place of birth. Non-recognition of children born through surrogacy implied that despite being biologically linked to one of the parents, the twins’ could not granted German citizenship on those grounds.

Argument for avoiding the eventuality of ‘stateless orphans’
In the preceding sections, I outlined some of the laws governing citizenship and the way their applicability gets tested in the unfamiliar domain of surrogate children and their rights. Despite this, I tried to discuss the ways in which existent laws are interpreted to create conditions in favour of the recognising the citizenship status of children born through surrogacy. In this section, I will try and argue for special rights of recognition, at least for an interim period, for such children. The cases discussed above have shown how these innocent children get caught in the mesh of complex laws about citizenship of the nation of their birth and that of their biological parents. Hence, I attempt to make a case for constituting temporary special citizenship rights for surrogate children.
Article 7 of the UN Convention on Rights of Child (1989) states that,
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

The Convention’s concern for children being left ‘stateless’ is apparent from the second clause cited above. The case of Baby Manji and Jan Balaz’ twins proved that children stand the risk of being ‘stateless’ when their country of birth is different from that of their parents’ nationality. I would like to stretch the UN’s endeavour to include special rights of surrogate children, for they stand the higher risk of being stateless and even orphans, due to differing norms of citizenship across countries of the world. I argue that there should be provisions for granting conditional citizenship to such children, for a limited duration, ensuring their smooth travel to their parents’ choice of country. I admit that this stand will invite an outright disapproval from nations that do not recognise surrogacy as a lawful means of reproduction. Nevertheless, making a case for the basic human rights of infants, I’d base my argument on Benhabib’s line of cosmopolitanism.
Benhabib (2004) argues that…
a cosmopolitan theory of justice cannot be restricted to schemes of just distribution on a global scale, but must also incorporate a vision of just membership. Such just membership entails: recognizing the moral claim of refugees and asylees to first admittance; a regime of porous borders for immigrants; an injunction against denationalization and the loss of citizenship rights; and the vindication of the right of every human being “to have rights,” that is, to be a legal person, entitled to certain inalienable rights, regardless of the status of their political membership. The status of alienage ought not to denude one of fundamental rights (Benhabib 2004:17, emphasis in original).

Children born through surrogacy to formal nationals are, in a sense, aliens. In the spirit of the UN CRC, such children do not deserve the discrimination of being stateless/orphans, for no fault of their own. It should be the duty of the state to provide protection and also, I argue, temporary citizenship status to such children, to ensure their smooth transit into the country of their parents’ birth/residence. Any action on the contrary is not only a gross violation of the basic human right to life and dignity of the new born, but also betrays a non-compliance to the essence of the rights of child as articulated by the UN.
The government of India intends to deal with the numerous legal issues of citizenship due to differing norms of other countries. For this purpose, it has incorporated a clause in the draft of the ART (Regulation) Bill and Rules, 2008, which stipulates that foreign couples should get a no-objection-certificate for surrogacy from their respective embassy. This Bill is yet to be passed, and until then, we can only hope that there are no new cases akin to that of Jan Balaz’ twins, or worse, Baby Manji’s, leading to innocent new-born babies being labeled as ‘stateless orphans’
To conclude, the citizenship rights of children born through surrogacy provide an excellent example of identity being embedded in nationhood and formal recognition of that status by states. As much as the argument for cosmopolitanism may rage on, the true test of citizenship is observed ‘when disputes arise over nationality’ (Arnold 2004:32). Surrogate children are a case of ‘in-between’ nationalities, and this status of theirs subjects them to quite tedious legal battles over eventually being granted citizenship rights of any one nation-state.


1.      Law Commission of India Report no. 228 (2009:9).


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