How is the Child's Citizenship Determined in Surrogacy Cases?

The citizenship of a child born through surrogacy is a complex legal issue, especially when intended parents are foreign nationals or Non-Resident Indians (NRIs). In India, the Surrogacy (Regulation) Act, 2021 provides a framework for surrogacy arrangements, but citizenship laws are primarily governed by the Indian Citizenship Act, 1955 and international treaties. A child born via surrogacy can acquire citizenship based on the nationality of the parents and the legal status of the surrogacy arrangement.

Determination of Citizenship in Surrogacy Cases

Citizenship for Indian Citizens as Intended Parents

If the intended parents are Indian citizens, the child born through surrogacy will automatically be an Indian citizen. According to Indian law, a child born within the territory of India is a citizen by birth under the Indian Citizenship Act, 1955, provided that the parents are Indian citizens.

• Legal Parentage: For Indian citizens, once the surrogacy arrangement is legally completed and the parents are recognized through the surrogacy agreement, they are considered the legal parents. The child’s citizenship follows the nationality of the parents.
• Indian Passport: The parents can apply for an Indian passport for the child once the legal parentage is confirmed, and the child is officially registered with Indian authorities.

Citizenship for Non-Resident Indians (NRIs)

If the intended parents are Non-Resident Indians (NRIs), the child born through surrogacy may acquire Indian citizenship by descent. According to the Indian Citizenship Act, 1955, a child born outside India to Indian parents is an Indian citizen if at least one parent is an Indian citizen at the time of birth. In the case of surrogacy:

• NRI Parents: The child will be an Indian citizen by descent if the intended parents are Indian citizens, regardless of whether they live abroad.
• Foreign Passport: However, the child may also acquire the nationality of the country where the parents reside, particularly if the intended parents have the child’s birth registered in that country.

Citizenship for Foreign Nationals as Intended Parents

If the intended parents are foreign nationals, the situation becomes more complicated. Indian law does not allow foreign nationals to engage in commercial surrogacy, but if the intended parents are involved in a compassionate or altruistic surrogacy arrangement, their child may be granted the citizenship of the country to which the parents belong, depending on that country's laws.

• Birth on Indian Soil: A child born in India to foreign nationals via surrogacy will generally not automatically receive Indian citizenship unless specific conditions are met. The child may acquire the nationality of the intended parents' home country if the parents follow the legal process to establish parentage.
• Parental Rights and Citizenship: The child can be registered with the foreign embassy and obtain citizenship from the parents' country if the country allows children born abroad to foreign nationals to claim citizenship.

Surrogacy and International Law

• International Surrogacy Agreements: When the intended parents are foreign nationals and the surrogacy is conducted in India, the intended parents must ensure that they comply with both Indian laws and the laws of their home country. The Surrogacy (Regulation) Act, 2021 prohibits foreigners from engaging in commercial surrogacy, but they may still engage in surrogacy through altruistic arrangements.
• Birth Registration and Citizenship Process: Upon the birth of the child, the parents' nationality plays a crucial role in determining citizenship. The parents may need to apply for the child’s citizenship with their country's consulate or embassy in India. The child may receive the citizenship of the parents’ home country if the country recognizes children born abroad to its citizens.

Surrogacy for Same-Sex Couples and Citizenship

In India, same-sex couples are not currently allowed to engage in surrogacy under the Surrogacy (Regulation) Act, 2021, which restricts surrogacy to heterosexual married couples. Therefore, issues related to the citizenship of children born to same-sex couples through surrogacy are not legally addressed in the Indian context at present. However, in jurisdictions where same-sex marriage is legal, the nationality of the child would follow the laws of the country of the intended parents.

Documentation and Legal Process

The process to confirm the citizenship of the child involves:

• Surrogacy Agreement: The intended parents must ensure that a legally binding surrogacy agreement is in place, clarifying their legal parentage.
• Birth Certificate: Once the child is born, the birth certificate will be issued with the names of the intended parents. This document is essential for applying for a passport and obtaining the child’s citizenship.
• Legal Parentage Recognition: The legal process for establishing parental rights and citizenship is essential, especially for foreign nationals. This involves presenting the surrogacy agreement, medical documents, and proof of intended parentage to the authorities.

Example

Ananya and Raj, an NRI couple from the United States, choose to hire a surrogate in India. After the child is born, Ananya and Raj legally establish their parentage through a surrogacy agreement, and the child’s birth certificate is issued with their names as the parents. Since both Ananya and Raj are US citizens, the child will automatically be eligible for US citizenship. After birth, they approach the US Embassy in India, which confirms the child’s citizenship, and they apply for a US passport for the child. The child is not automatically granted Indian citizenship because the parents are foreign nationals. However, the surrogacy was conducted under the altruistic surrogacy arrangement, which is allowed for NRIs.

Summary

The citizenship of a child born through surrogacy in India depends on the nationality of the intended parents. If the parents are Indian citizens, the child will acquire Indian citizenship. For NRIs, the child will likely obtain Indian citizenship by descent. However, if the parents are foreign nationals, the child will typically acquire the nationality of the parents' country, and Indian citizenship will not apply unless specific conditions are met. The legal process involves obtaining a birth certificate, establishing parental rights, and navigating citizenship laws in both India and the parents' home country.