A Dilemma, a Decision, Two Children

An Indian-born American citizen is running from pillar to post to unite his two children who are stuck in different countries, caught in a legal tangle not of their own making.

Published: 23rd February 2014 09:24 AM  |   Last Updated: 23rd February 2014 09:24 AM   |  A+A-

An Indian-born American citizen is running from pillar to post to unite his two children who are stuck in different countries, caught in a legal tangle not of their own making.

Maulik Modi’s son Vedant and daughter Medhavi were born to surrogate mothers in India through the IVF procedure. While Maulik’s wife registered her son as her biological child on his birth certificate and he remained in the US with her, she failed to acknowledge Medhavi’s existence when the couple divorced in 2010, leaving the five-year-old in India.

Mrs Modi had made no mention of Medhavi as her daughter in the divorce petition, making her legally invisible in America. In June 2010, Maulik was granted US citizenship. But he did not apply for US citizenship for Vedant, who lived with his mother.

According to American law, as a US citizen, Maulik cannot apply for the renewal of his son’s Indian passport, which expires in March, but can sponsor him for US citizenship being his father. But there is a catch. Even if Vedant becomes an American citizen, the father cannot bring his son to India due to a restraining order his wife had got from the US court. Moreover, Maulik cannot apply for an Indian passport for Medhavi since he is a US citizen. He also cannot obtain a US passport for her because at the time of her birth, he was not a US citizen as required by the US laws.

Says Maulik despairingly, “I can get my IVF son a US passport as per law, but a court order prevents me from taking him outside the US. So, I cannot get him to come to India to meet his sister. My ex-wife cannot get a US passport for my son as per law, since she has no genetic link to my son.” The bewildered father cited similar IVF cases, since only biological parents can seek an American citizenship for their offspring after they immigrate. The US government would not, hence give Medhavi a US passport even though Maulik is genetically her father. As a result, she cannot leave India and go to the US to meet her brother.

“As a result, my innocent IVF son and daughter are caught in a Catch-22 situation and remain landlocked. I’m left with only two choices-either abandon my IVF daughter in India and stay in the US with my son or give him up in the US and raise my IVF daughter in India,” a distraught Maulik told Express. He quit his job with a blue chip company and chose to return home in August 2010 to raise Medhavi instead of abandoning her to the uncertain mercies of an orphanage. “I was left with a terrible choice, one that no parent should ever be put in. Why and what crimes did my kids commit for being punished?”

Lack of laws

IVF children have been made “legally invisible” because fertility laws of both the US and India are inadequate. The existing Indian law, Assisted Reproductive Technology (Regulation) Bill, only regulates IVF industry and not the rights of IVF children. It suffers from serious lacunae and shortcomings, including recording the parentage of the surrogate child and the process of determination of nationality rights.  The US law on surrogacy is also full of contradictions. It says both parents should be US citizens, and if their child is born outside the country, they must establish their genetic link with the child. In Maulik’s case, the daughter was born before he became a US citizen, and hence cannot get an Indian passport for her nor a US one, leaving her stateless.

Maulik has been pleading with the US embassy in Delhi for the past three years to grant his daughter US citizenship and a valid visa to meet her brother. On all occasions his plea was rejected.Ironically the visa counsellor at the American mission is Joyce Haley, who had facilitated the “evacuation” of Devyani Khobragade’s domestic help by granting her a visa in undue haste. Maulik’s plea to the US embassy to at least allow his son to travel to India to see his sister by challenging and setting aside the US court order in favour of an US citizen went unheard.

The Baby Manji case brought surrogacy to the forefront of Indian debate in 2008. A Japanese doctor couple used a gestational surrogate with a donor egg, but then divorced before the baby was born in Anand, Gujarat. The wife (who was not genetically related to the baby) didn’t want the baby, but the father (who was genetically related to the baby) did. The story ended well-Baby Manji did get a Japanese visa, but not before the father was accused of child trafficking by Indian NGOs.

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