Stateless toddlers

It is a harrowing tale of legal tangles, unending wait and dying hope for Germany’s Jan Balaz who has been running from pillar to post trying to take his twins back to Germany. Born through surrogacy the twins are nationals of nowhere and are living in Jaipur with their grandmother as their father fights their case in Supreme Court and their mother goes back to Germany to keep her job and keep the funds flowing. It has been a two-year-long plight even as Balaz has sought all routes to somehow get these children home.Nidhi Mittal tells you why it is still a deep long tunnel for this unfortunate foreign family

You may call them citizens of nowhere or, more indulgently, citizens of the world. But Nikolas and Leonard, all of two years, may use up their entire life to get one, not just a nationality but also parentage despite having a biological father fighting for them.
Nikolas and Leonard were born around in Anand, Gujarat but they are neither Indian citizens nor Germans, as their parents, rather commissioning parents as the court of law likes to call them.
Born to a surrogate mother, the twins are ignorant that their “commissioning” mother has left for Germany after a long wait in India to take them with her while their father is fighting a legal battle to get them a passport — Indian or German.
And, Jan Balaz is a tired man. Fighting a lawsuit in a foreign country and not being able to take his children back home to Kempton in Germany, has made him look older than he is. “It’s not easy but do I have another option? They are asking me to adopt my own children. What could be more distressing than that? But that’s the only way I can possibly get them a passport or a visa,” says Balaz, talking about the German Government’s suggestion about an inter-country adoption which the Supreme Court has agreed to.
When Balaz decided to come to India to have children through a surrogate mother, he did not know that in Germany, surrogacy is a punishable offense. All he knew was that in India surrogacy is a popular activity, that too cheaper than in Europe or the US where the law recognises it. He went by reports of international citizens having successfully got children in India and gone back home to a happy and fulfilled life.
Hoping to do the same, Balaz and his wife Susan Lohle contacted Dr Nayna Patel in Anand. While they arranged for their long stay in India, Dr Patel picked out a woman who was ready to bear a child for them. Having got a surrogate womb, eggs from yet another woman and sperms from Balaz, the couple lost no time in starting the IVF procedure in early 2007. Luckily for them, the woman conceived immediately. “I saw the Anand facility on a news channel once in Germany. At that time, we were looking for options to have a child. That is how I decided on India. I was told it (surrogacy) keeps happening here. We were happy when we saw a positive response from everywhere,” says the father of the twins who are now in Jaipur where Balaz’s mother is taking care of them in the absence of Susan.
Susan had to return to Germany recently because she had exhausted all her work leave. She works as a helper in a day care centre in Kempton, while Balaz is a freelance photographer, with “no special interests. I do all kinds of photography for magazines and journals,” he tells you.
Balaz also tells you how his mother has not gone home for three years now and has been with him in all this. “She has been in India for three years because we can’t take the kids to Germany owing to the insensitivity of authorities. However, Indian courts have been quite kind to us,” he insists, pointing out how the Gujarat High Court ruled that his children should be given an Indian citizenship and an Indian passport. However, due to lack of any surrogacy law for international citizens, the Union Of India challenged this ruling in the Supreme Court.
SC, though, is considerate about the fate of these Stateless children, but has its hands tied due to the lack of any specific rule or law on surrogacy, which is estimated to be a Rs 5,000-crore market in India. It is actually the stringent German law that makes things difficult for everyone in this particular case. The German Embryo Protection Act, 1990, states that “anyone will be punished with up to three years imprisonment or a fine, who transfers into a woman an unfertilised egg cell produced by any other woman… or attempts to carry out an artificial fertilisation of a woman who is prepared to give up her child permanently after birth (surrogate mother) or to transfer a human embryo into her.”
The law makes surrogacy a crime and refuses to recognise as German citizens children born thus in any part of the world. Balaz’s big mistake was that he simply did not know of this till he applied for a passport for his twins. That was the time that the legal battle started. It was difficult for him to try and understand all the intricacies of the laws of the two countries, and didn’t understand why is it that his children can’t be Indian citizens when they are born on Indian land to an Indian woman. For now, Balaz keeps shuffling between Delhi, where the case is in Supreme Court, and Jaipur, where he has rented an accommodation and lives with his two children and mother.
Now that he has accepted that there is no other way but to adopt his own children, one more address has entered in his list of places to rub his feet — the Central Adoption Resource Authority (CARA). CARA is the Government agency which processes all adoptions, including the inter-country ones. Balaz has spoken to the head of CARA but is yet to see hope as “the agency says it will have to look into the legal implications of such a case.”
On their part, CARA sees scant hope for the man and his children, though the chairman of the central agency insists that he is yet to receive and study the document containing the directives from SC. “I can’t say specifically what would be the outcome of this case since I still don’t know what the SC directive is. But there are a lot of problems with Mr Balaz’s adoption case,” J K Mittal, chairman, CARA, says.
Explaining the intricacies, Mittal says the problem starts right from the fact that Nikolas and Leonard are born through surrogacy. “Surrogacy doesn’t come under the purview of CARA. We don’t have any guidelines on it. Further, since the twins are Balaz’s biological children, how can he adopt his own children?” questions Mittal. The next problem lies in the fact that the two boys are already living with Balaz which is a complete no-no with adoption guidelines.
Mittal, who regularly deals with inter-country adoptions and is currently dealing with four cases from Germany alone, says the problem lies with people who do not find out about a country’s laws and procedures. “Like everything else, they want to take home babies easily. One must take care to read all the guidelines which are not at all difficult to understand,” Mittal insists.
Meanwhile, Balaz’s counsel Nikhil Goel is doing his bit to convince Solicitor General Gopal Subramanium about Balaz’s plight and his sentiment for his children after questions were raised on the possibility of child-trafficking. Balaz has filed an undertaking to this effect which satisfied the SG. On humanitarian grounds, he then said the Government will try to persuade Germany to facilitate a one-time visa for the twins. However, Germany insisted that was not possible and instead suggested that Balaz adopt the children.
It’s not as if the Indian judiciary is not concerned about the fate of these innocent twins. Finding the surrogate babies caught in no man’s land for no fault of theirs, a Bench comprising Justices GS Singhvi and AK Ganguly vented anguish on their behalf: “Should we treat children born out of surrogacy as commodities?…. Statelessness cannot be clamped upon 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.”
But where will the assurance come from? According to the Indian Citizenship Act of 1955, children of a foreign couple cannot be Indian citizens and surrogacy does not find a mention anywhere. Though a Bill was floated in the Rajya Sabha in 2008, there has been no follow-up action on it. It was the 228th report of the Law Commission that demanded legality for surrogacy. However, there was a slight change in the treatment to surrogacy 2003 onwards. With the Baby Manji case, surrogacy got more recognition and came to limelight.
Returning to Balaz and all the odds he has been facing in getting his babies home, he nevertheless insists that his overall experience in India has been a pleasant one. “I like Indians better than Germans. They are more warm and helpful,” he says. However, there is a contradiction when you ask him why he chose Jaipur as the city of his residence. “Indians look at White people strangely. We are treated strangely too. I think there should be friendliness towards Whites which I found in Jaipur. Maybe because Jaipur sees more international tourists every year,” he explains.
The twins, born on January 4, 2008, may never know that Susan is not actually their mother, or who gave birth to them. As part of the contract, their surrogate mother Martha Immanual Khristy will never contact the German couple. The 28-year-old woman has her own two children. She rented out her womb for Balaz and Susan to earn enough money for her six-year-old daughter and four-year-old son as she was struggling to make ends meet till the time she registered for surrogacy at Dr Patel’s clinic in Anand.
For Dr Patel, this was the first German couple and she was unaware of German law. “Such legal tangles should not be there. The couple should have found out before they set out for this. Mr Balaz’s case is unique. Otherwise, I have not seen any legal problems cropping up with foreign couples so far,” says Dr Patel, who gets almost 40 couples a year seeking a surrogate child.
Her facility boasts of an ever increasing number of registered women who want to be surrogate mothers. “I have more than 200 women from various backgrounds registered. It is through artificial insemination or IVF that they become pregnant. However, the success rate is only 20 per cent, but couples keep trying till the time they get a positive result. And a woman is not allowed to be a surrogate for more than three times. From 2004 till now, I have seen a woman bearing a child maximum twice,” she tells you on phone from Anand, adding that the medical expense of having a baby through surrogacy in India comes around US $20,000.
A good number of salaried middle class women in Anand have taken to surrogacy to boost their earnings. In most cases, they get between Rs 2.5 lakh to Rs 5 lakh per delivery. In the US, surrogacy costs around $50,000, excluding medical bills and charges for agencies which find surrogate mothers. The cost consideration apart, childless couples across the globe choose India because of the refined cultural background of the middle-class surrogate mothers. Dr Patel receives an average of 10 emails a day from childless couples overseas who prefer Indian surrogates because they are generally free from vices such as drinking, smoking and drugs.
Although India’s first surrogate baby was delivered on June 23, 1994, the practice started receiving international attention in 2004 when an Indian woman delivered a surrogate child for her daugther in the UK. Surrogacy in India gained further attention in 2007, when Oprah Winfrey featured a US couple pursuing surrogacy in India on her popular show.
While 2007 figures from the Society for Assisted Reproductive Technology (SART) reported 276 successful gestational surrogate pregnancies in the US, India’s clinics delivered 150 successful gestational pregnancies. This makes India the second most common location for gestational surrogacy. However India, unlike the US and Europe, has clinics that specialise in gestational surrogacy.
The surrogate mothers and parents sign a contract that promises the couple will cover all medical expenses in addition to the woman’s payment, and the surrogate mother will hand over the baby after the birth. Counseling is a major step, and Dr Patel on her part tells the women to think of the pregnancy as “someone’s child comes to stay at your place for nine months”.
All this worked for Martha, Balaz and Susan, though the couple unfortunately got stuck in a legal pool later. Even though adoption may have shown them a way out of the German law, the couple will face another big roadblock for this — the adoption red tape in India. According to the Comptroller and Auditor General report of 2008-09, over 6,000 orphaned children in Gujarat don’t have legal parents since 2004, either because agencies did not file their cases on time, courts delayed adoption procedures or agencies broke rules, thus, invalidating the adoption. Some children don’t have legal parents for even over four years when they are already in school.
As per CARA guidelines, the adoptive parents can take the child on pre-adoption foster care after signing a foster care affidavit. The State Government then has to ensure that the adoption is legalised within six months. The CAG report states that as per guidelines, the agencies need to file a petition in court after matching, and place the child for pre-adoption foster care to the adoptive parents. However, in Shishu Gruh, Khanpur, in Ahmedabad, six children were given away without completing formalities and siblings were separated, thus breaking rules, notes CAG.
In the Mahipatram Roopram Ashram in Ahmedabad, 23 abandoned children were given away without the paperwork. Rules say that a child can be freed for adoption only two months after it has come to an orphanage. However, Shishu Gruh gave away nine children before completing two months.
The fate of Jan Balaz, Susan and their sons Leonard and Nikolas hangs in balance and in the hands of a blindfolded woman. That’s unfortunate, and it’s scary.