Canada and Mexico

Guide for Canadians Doing Surrogacy in Mexico

Updated on May 23rd, 2024 to reflect the changes in second generation cut-off rule.

If you are a Canadian just like me, you might be choosing Mexico because you are frustrated with the long wait time for surrogates in Canada. Mexico is a popular destination for surrogacy for Canadians because of its proximity to Canada. It takes about 4 to 6 hours of flight to get to Mexico as opposed to European destinations, and Mexico is a more familiar destination to those who travel to places like Cancun for vacation.

The Disadvantage of Doing Surrogacy in Canada

Assisted Human Reproduction Act (AHRA) of Canada prohibits commercial surrogacy. What this means is that intended parents cannot pay a woman to carry their child beyond the expenses that can be proven by physical receipts. Specifically, the AHRA stipulates the following:

  • No one is allowed to pay any compensation for another person to carry their fetus for the purpose of surrogacy. An intended parent can only pay expenses that the surrogate mother incurred as a result of surrogacy, such as maternity clothes, vitamin supplements, and transportation cost to the clinic for pregnancy care. These expenses have to proven by physical receipts.
  • An intended parent may pay for the lost wages and bedrest if incurred by the surrogate. A qualified medical professional has to certify that continuing work may post risks to the surrogate or the fetus.
  • No company or agents of a company is allowed to facilitate matching between intended parents and surrogates.

Essentially, surrogacy in Canada is restricted to altruistic cases. Most commonly, this is when a friend or a family member agrees to carry the fetus for the intended parent because of her inability to do so herself. Some agencies in Canada skirts the AHRA by acting as a consultant to the intended parents. They instruct the intended parents how to find and interview a surrogate without themselves presenting a surrogate.

While it is possible for a Canadian intended parent to find a surrogate, it is not without difficulty. Because surrogates are not allowed to be compensated beyond ordinary expenses, the number of surrogates is far smaller than the number of intended parents looking for a match. This has resulted in a very long wait time for Canadians to find a surrogate – often between 2 and 5 years. A Canadian intended parent also has to actively present themselves in the best light possible to a small pool of surrogates, including writing appealing letters, shooting a video, and even making a website.

The Advantage of Doing Surrogacy in Mexico

Unlike Canada, surrogacy in Mexico is regulated at state level, and vast majority of Mexico states have no explicit laws governing surrogacy. Only 2 states have explicit regulations on surrogacy, namely the states of Tabasco and Sinaloa. The state of Tabasco, since the amendment of its surrogacy law in 2016, has tightened the restrictions on surrogacy. It permits only Mexican citizens to enter surrogacy agreements and it allows only altruistic surrogacy. How the state will amend its law in the light of 2021 Mexican Supreme Court ruling that allows foreign nationals seeking surrogacy services is unknown. The state of Sinaloa does allow foreign nationals and recognizes the parental rights of intended parents by allowing pre-birth order, thereby becoming a possible surrogacy destination for Canadian intended parents.

Other states don’t have state-level laws that regulate surrogacy. At state level, they don’t allow or disallow commercial surrogacy. The 2021 Supreme Court ruling in Mexico explicitly recognizes the parental rights of the intended parents and the non-discrimination of children born through surrogacy. It also grants foreign nationals and LGBTQ+ people the right to access surrogacy services in Mexico. So, while many states don’t have laws pertaining to surrogacy, the Supreme Court ruling makes it constitutional for anyone to access surrogacy. As intended parents, you can have your or your partner’s parental rights recognized by the Mexican state upon the birth of your child. You can have your name placed on the birth certificate in place of your surrogate’s name, but this may require a special kind of trial called Amparo.

What’s the Exit Process Like for Canadians?

If you are a Canadian citizen and if your name is on your child’s birth certificate, you can pass your Canadian citizenship to your child. Your child would be a Canadian citizen at birth; you just have to prove it to the Canadian embassy by presenting your child’s birth certificate and/or surrogacy contract and hospital records. However, there is an exception to this rule, called the second generation cut-off rule*: If you were born outside of Canada and inherited your Canadian citizenship at birth from your parent, your child born in Mexico will not automatically receive Canadian citizenship. If this applies to you, you may have to sponsor your child for permanent residency in Canada. Consultation with an immigration lawyer is strongly recommended in this case.

* Update on May 23rd, 2024: the federal government has indicated that it would reverse the second generation cut-off rule. It is planning to put forward a bill that grants Canadian citizenship to children who would not have qualified for it because of the rule. Instead, the parent passing citizenship to the child has to show that he or she resided in Canada for at least 3 years before the birth of the child. Source

Your child will not receive Canadian citizenship at birth for two more scenarios as described below:

  • Your partner is a Canadian citizen and you are a permanent resident, and only your name is on your child’s birth certificate, or
  • You are a Canadian citizen and your partner is not a Canadian citizen, and only your partner’s name is on your child’s birth certificate

In these cases, Amparo process would be needed to have the name of you and/or your partner on your child’s birth certificate so that your child can receive Canadian citizenship at birth. The Amparo process is a court process that aims to have you or your partner officially recognized as the legal parents of the child born through surrogacy. It also removes the surrogate’s name from the birth certificate, meaning that the surrogate is no longer considered a legal parent of the child. The timeframe of the Amparo process varies depending on which courtroom and judge you are assigned to, and it can be between 1 and 3 months, although some intended parents have been stuck in Mexico for 5 months or more. A competent lawyer experienced in surrogacy cases is needed to help you navigate the complexity of Mexican legal system.

Can I Bring Home My Child Without Going Through the Amparo Process?

The Amparo process can take 1 to 3 months, and that’s why some intended parents ask whether they can come back to Canada without going through the process to amend the birth certificate. This means your child’s birth certificate will still have your surrogate’s name. It is certainly possible to come back to Canada with the surrogate’s name still on the original, Mexican birth certificate. This takes only 2 to 3 weeks. However, there are some points to consider.

  • Often, the surrogate asks for her name to be removed from the birth certificate. This legally absolves her of any parental rights and obligations to the child. In the past, some surrogates have been charged with child abandonment when the intended parent left the country with the child.
  • Some agencies and lawyers require that you go through the Amparo process to remove the surrogate’s name from the birth certificate for the above reasons.
  • Once you come back to Canada, you will not be able to change the birth certificate. There will be no 2nd birth certificate issued by the Canadian government.
  • It is customary in Mexico that the child gets the last name of both of the parents. That means your child’s last name might be recorded as your name-your surrogate’s name. While it is not impossible to change your child’s last name in Canada, this may involve making an application to the provincial government for changing your child’s last name or legal proceedings in your jurisdiction, adding time and expense.

It is advisable to talk to a family lawyer in your province to determine what the legal ramifications are in keeping the surrogate’s name on your child’s birth certificate.

Can I Bring a Surrogate To Canada to Do Embryo Transfer?

Some Canadian clinics have allowed Canadian intended parents to bring a Mexican surrogate to Canada for embryo transfer. Some intended parents may feel more at ease with their own Canadian fertility clinic. They also would not have to ship their embryos to Mexico, which is slow and costly. As mentioned earlier, however, AHRA prohibits any form of monetary compensation for the surrogate in exchange for medical procedures involving surrogacy. It might be argued that if the intended parent pays the surrogate after she goes back to Mexico, the monetary exchange did not take place within Canada, thus skirting AHRA. However, it is not clear if it doesn’t violate the letter of the law; it certainly violates the spirit of the law. Also, as of February 2024, Mexican citizens require a VISA to enter Canada. It is not clear if a Mexican surrogate can obtain a VISA if her purpose is to be a surrogate in Canada. My recommendation is to talk to a qualified lawyer before bringing a surrogate to Canada.

Leave a Reply

Your email address will not be published. Required fields are marked *