By Miriam Seember Atser, Esq.

INTRODUCTION:

It has long been observed that mid-air births are a rarity. The reason for such position is not farfetched as most airlines restrict the travel of heavily pregnant women after 35 weeks of pregnancy due to the risk of delivery in flight. However, it appears the narrative is fast changing as a number of on board flight births have been recorded in recent times. In 2022, the New York Post reported that a pregnant woman who didn’t know she was pregnant gave birth mid- flight (onboard KLM Royal Dutch flight from Ecuador to Spain through Amsterdam, the Netherlands), after she went into the plane’s toilet with a stomach ache but ended up giving birth. In a near similar turn of events, Vanguard reported in June of 2023 that a pregnant woman flying on a KLM flight of a Boeing 777 bound for Lagos to Amsterdam suddenly went into labour and eventually put to bed mid-air, forcing the airplane to land as a matter of emergency in Spain. This is to mention but a few of those recorded occurrences. Will this happen again? It is not impossible. The nudging question hence on the lips of very many a people is “what Country Citizenship does such a child born mid-air lay claim to”?

LEGAL ANALYSIS

In a constructive attempt to provide an answer to the question and solve a legal quagmire, this opinion shall be based on the three (3) important elements upon which a person’s nationality is determined. The determining elements are hereunder provided and legal opinion on the elements provided accordingly:

A Element One

JUS SANGUINIS: Which is known as the “right of blood” is a principle of nationality law by which citizenship is determined or acquired by the nationality or ethnicity of one or both parents. This means that the nationality of a parent is passed on to the child. This is the practice in most (if not all) countries of the world and specifically, in Nigeria which is well captured in section 25 of the Constitution of the federal Republic of Nigeria (1999) as amended, hereunder duplicated;

– (1) The following persons are citizens of Nigeria by birth, namely
every person born in Nigeria before the date of independence, either of whose parents or any of whose grand parents(sic) belongs or belonged to a community indigenous to Nigeria:
Provided that a person shall not become a citizen of Nigeria by virtue of this section if neither of his parents nor any of his grandparents was born in Nigeria;

every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria: and
every person born outside Nigeria either of whose parents is a citizen of Nigeria.
(2) In this section, “the date of independence” means the 1st day of October.

The implication of this factor therefore, is that if a child is born mid-air to Nigerian parents, the nationality of the child automatically is Nigerian. However, where the nationality of the mother is different from that of the father, the child takes on the nationality of the father save the nationality of the father is stateless, in which case the nationality of the mother is automatically passed on to the child.

B Element Two

JUS SOLI: is a Latin term which means “right of the soil” and it is a rule that provides that the citizenship of a child is determined by the place of its birth. There is restricted (conditional) and unrestricted (unconditional) jus soli. As at the time of making this opinion, According to World population Review, 33 countries in the world (and two territories) have unrestricted birthright citizenship (including the United States of America) and another 32 nations have some form of restricted birthright citizenship ( including the United Kingdom, If one parent is citizen or legally settled in the country or if child has lived in the country for 10 years). So if a country offers automatic citizenship to those who were born in its territories and a child is born mid-air within the territorial airspace of such a country over which they were flying then that child takes on the nationality of that country. It is necessary at this juncture to breathe into life the words of The 1944 International Convention on Civil Aviation (ICAO Convention), also known as the Chicago Convention which provides in Article 1 that every state has complete and exclusive sovereignty over the air space above its territory.

Element Three
PLACE OF REGISTRATION OF THE AIRCRAFT: Citizenship/Nationality of the plane so to say is also an important factor in determining the nationality of “air babies”. The earlier factors above mentioned however will almost always solve a citizenship dilemma before the determinant of place of the registration of the aircraft comes into play. The import of this determining factor is that a child born in the middle of a flight will take up the nationality of that aircraft since all aircraft have the nationality of the country in which they are registered, no matter where takeoff and landing happen as the laws of countries applies on its planes. Pursuant to the Chicago Convention, aircraft have the nationality of the State in which they are registered. This scenario is nonetheless a rarity as countries will scarcely extend citizenship to a child simply because that child was born in a plane registered in that country save and except the child is born to stateless parents, neither is there an option to take on the citizenship of his/her parents.

The Convention on the Reduction of Statelessness 1961 provides in Article 1 that a Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. It goes further to state that such nationality shall be granted:

(a) at birth, by operation of law, or

(b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.

CONCLUSION.

Even though in-flight births are not medically advisable, they occur, and there has been some rumblings about what nationality that such a child inherits. Unique as this situation sounds, there are territorial principles adopted by states to cater for such a situation as expressed in the body of this opinion.

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