Many parents, but ‘legal orphans’: the stateless surrogate babies of India

Children born to surrogate mothers in India risk becoming ‘stateless’, claims a study by Usha Rengarchary Smerdon in the journal Contemporary South Asia. Smerdon, Vice-President of Ethica in Kansas City, criticises India for encouraging medical tourism to the country, while at the same time neglecting to formulate clear rules for the children born as a result. Many of the countries from which the ‘commissioning parents’ come do not recognise surrogacy, further clouding the babies’ legal status.

The article, Birth registration and citizenship rights of surrogate babies born in India, describes the legal minefield into which many children of surrogates are born through several touching case studies. Smerdon recalls the case of twins born to a German father. As Germany considered the children Indian citizens, they had to wait in India for two years before being granted a visa to enter Germany; they then had to be adopted by their own father. Even greater legal uncertainty surrounds children whose origins are not quite as intended, whether through medical mishap or fraud. She cites two cases where children born of surrogates were not related to the commissioning parents as planned. Gay men also face problems bringing their children ‘home’.

The result is babies stuck in legal limbo, unable to leave India to start new lives abroad, and unrecognised as citizens of their new homes when they do. Obtaining citizenship of their ‘new’ countries is never assured. This situation is not in the interests of the children. “Without the ability to acquire a nationality, stateless children are unable to fully participate in their community and society,” Smerdon objects.

To date the Indian government and its courts have dealt with this growing problem through ad hoc measures and one-time visas. The author observes that ‘the rights of children who continue to be born through such arrangements through no fault of their own should be elevated above all others, and calls for Indian citizenship to be automatically attached at birth to prevent statelessness, as ‘any contrary result places the interests of other parties above the rights of the child and treats the child as a commodity.’

This article is a fascinating insight into a very modern dilemma caused by reproductive technology outpacing the law.

Read this article for free today and discover more about this controversial issue: http://www.tandfonline.com/doi/full/10.1080/09584935.2011.599833

Media Contact: Iain Matthews, Senior Marketing Executive, Routledge, Taylor & Francis Group, 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN    
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The countries of South Asia - Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka - are internally diverse and part of global flows of people, goods and ideas. Contemporary South Asiaseeks to address the issues of the region by presenting research and analysis which is both cross-regional and multi-disciplinary. The journal encourages the development of new perspectives on the study of South Asia from across the arts and social sciences disciplines. We also welcome contributions to pan-regional and inter-disciplinary analysis. Our aim is to create a vibrant research space to explore the multidimensional issues of concern to scholars working on South Asia and South Asian diasporas in the postcolonial era.

For more information, visit: www.tandfonline.com/ccsa