K.S. RADHAKRISHNAN, C.J. The question whether a child born in India to a surrogate mother, an Indian national, whose biological father is a foreign national, would get citizenship in India, by birth, is a momentous question which has no precedent in this country.

2. Petitioner is a German national and is a biological father of two babies given birth by a surrogate mother by name - Marthaben Immanuel Khristi - a citizen of India. Petitioner's wife Susanne Anna Lohle is a German national. Due to biological reasons, the wife of the petitioner was not in a position to conceive a child. Desiring to have a child of their own, they opted for In Vitro Fertilization (IVF). Assisted Reproductive Technology Infertility Clinic at Anand came to their help. Investigation revealed that wife of the petitioner would not be in a position to reproduce ova (eggs) as a result of which it would not be possible to conceive a child even with the help of a surrogate mother by using the sperm of the petitioner. An Indian citizen keeping anonymity volunteered to donate ova, and through a scientific process the petitioner's sperm was fertilized with the donor's ova and the fertilized embryo was implanted to the uterus of the surrogate mother. Petitioner and his wife had entered into a surrogacy agreement with the second respondent - surrogate mother. After full discussion with Dr. Nayanaben Patel of the Clinic, surrogate mother was made known about the method of treatment. She had also agreed to hand over the child to the petitioner and his wife on delivery. Further surrogate mother had also agreed that she would not take any responsibility about the well being of the child and the biological parents would have legal obligation to accept their child and that surrogate mother would deliver and the child would have all inheritance facts of a child of biological parents as per the prevailing law.

3. Surrogate mother gave birth to two baby boys on 4.1.2008. Petitioner then applied for registration of the birth of the children in the prescribed form to Anand Nagar Palika. Anand Nagar Palika issued a certificate of birth to the children as per the provisions of Registration of Birth and Deaths Act, 1969. Earlier date of birth was shown as 14.1.2008, which was later corrected as 4.1.2008 and the name of the petitioner's wife who was shown as the mother of the babies, was replaced with the name of Marthaben Immanuel Khristi.

4. Petitioner and his wife, though German nationals, are working in United Kingdom, stated that they are desirous of settling down in U.K. and for the said purpose they have to obtain VISA from the Consulate of the United Kingdom in India. Since babies were born in India and are Indian citizens, petitioner applied for their Passport in India showing their names as “Balaz Nikolas” and “Balaz Leonard”. Petitioner's name was shown as the father and surrogate mother's name was shown as the mother. Applications were entertained by the Passport Authorities and Passport No. G-8229646 and Passport No. G-8229647 respectively were issued in the name of above mentioned babies. Later, petitioner received an intimation-cum-notice issued by the Government of India, Ministry of External Affairs, Regional Passport Office, vide letter dated 6.5.2008 stating as follows:-

“On process it revealed that as usual procedure Passport is already issued under Tatkaal Scheme to both. Still the matter is pending in Hon'ble High Court of Gujarat and this is the citizenship related issue and also the endorsement regarding your surrogacy is to be taken in the Passport of your sons. Kindly let this office know in whose possession at present the passport is lying? One such identical case Passport application is also received in which the name of the Mother who did not conceive the birth is given in the Birth Certificate, which is also violation of Scheme 2 (1) a and 2 (1) (d) of the Birth and Death Registration Act 1969 therefore making endorsement of Hon'ble High Court