The India Supreme Court has set the stage for providing Assisted Reproductive Technology parents some predictability with the legal process of parentage.

On July 25, Manji was born. She was a Gestational Surrogacy baby from the sperm of a Japanese husband and an anonymous donor egg. Since birth, she has been in a legal limbo because the Intended Parents divorced during pregnancy. While Intended Father wanted to keep the baby, his ex-wife did not.

The Father applied to adopt the child, but Indian laws do not permit single men adopt baby girls. Further, Manji could also not be taken out of India because the legal system did not provide guidance to determine her nationality and the Japan would not issue a visa without proper documentation. Thus, she has been captive, in a hospital without her parents, since birth.

The Supreme Court ruled that commercial surrogacy was legal. That being said, Manji's Father can now petition Indian authorities to rule that he is Manji's biological father. As Father, he can forgo an adoption and documents can be issued which would allow his child to enter Japan.

This case galvanized the Indian Parliament to set out surrogacy laws to protect a US$445 million industry that has become a 'hub for fertility tourism'. The draft surrogacy Bill, called Assisted Reproductive Technology (Regulation) Bill 2008, is expected to be tabled at the next parliamentary sitting, and should help India's growing assisted fertility market.

First, the proposed Bill makes clear that a surrogacy child is the 'legitimate child' of the Intended Parents relying on assisted reproduction even if they become separated or divorced. Further, the child's birth certificate will bear the names of the genetic parents.

Second, it requires foreigners to register their intentions with their Embassy and provide proof that they will be able to take the child back to their country. They must also appoint a local guardian to be legally responsible for the surrogate until the child is born.

The Bill also mandates that Intended Parents shall execute a legally enforceable surrogacy agreement where they agree to pay the Surrogate's medical expenses, compensation and medical insurance. Surrogates and egg donors will be supplied by Sperm Donor Agencies.

Most legal authorities would agree that the surrogacy bill is a major step in the right direction. They also maintain that Intended Parents must look at more than the out of pocket costs to decide if or when fertility tourism is appropriate for their situation. 

Is cost the most important thing to you?