The court in Berlin ruled that the German embassy in India was within its rights to refuse a passport to the child, born in December, on the grounds that the citizenship of the biological father was irrelevant to the case.
Surrogate motherhood is prohibited in Germany. It is permitted in India. But under both German and Indian law, the legal father of a child born by surrogacy is actually the surrogate mother's husband.
The biological father in this case was a German man born in 1950. He and his wife applied at the German embassy in India for the child to get a German passport.
The embassy rejected the application because it doubted the child's German citizenship. The birth certificate from the hospital recorded the German man and his wife as the parents. The place of birth was recorded as an agency that specializes in surrogacy.
German citizenship is normally recorded if one of the parents has it. But the court ruled that doubts about this relationship were grounds for refusing a passport. In this case, the citizenship of the biological father was not legally relevant.
The parents are able to appeal the decision to a higher court.
A similar case two years ago made headlines when twins born to an Indian surrogate mother were denied entry to Germany. Not until May 2010 were visas issued after the Bavarian couple fought the case through the courts.
The twins were born at the beginning of 2008. The German authorities denied the infants passports because surrogate motherhood is not legal in Germany. The authorities in India issued the children with travel documents only after months of debate. Eventually these were stamped with German visas.
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The Foreign Ministry states expressly on its website that children born to surrogate mothers overseas to German “hopeful parents” do not acquire German citizenship at birth.
“The phenomenon is widespread in India where many childless Germans go to fulfil their wish to have babies,” Stephan Groscurth, a spokesman for the court, said on Wednesday. “They think it is possible without any problems to take the child to Germany. But that's not the case.”