A baby girl in front of an US flag

Guide to the Exit Process for American Intended Parents

Table of contents

Updated July 19th, 2024: Length of time for Amparo trials

Many American intended parents visit Mexico for surrogacy as the cost of doing surrogacy in the US is 2 to 3 times more expensive than that in Mexico. Surrogacy is unregulated in Mexico, so it is important to understand the process of surrogacy including the exit process after the birth of your child. When I say exit process, it means the process after the birth of your child you take to go back to the US with your child.

We’ll look at the legal status of your child born through surrogacy on Mexican soil.

Passing US Citizenship to a Child Born Through Surrogacy

When your child is born in Mexico through surrogacy, you’ll have to apply for CRBA (Consular Report of Birth Abroad), which is a document proving that your child has inherited US citizenship at birth. Obtaining CRBA allows you to apply for US passport for your child so that you can bring your child home.

CRBA has several general requirements as prescribed in the Immigration and Nationality Act. The notable ones are:

  • Proof of parent(s)’ US citizenship. This can be your US passport and/or the original Certificate of Naturalization or Citizenship.
  • Original marriage certificate if you are married.
  • Divorce or death certificate, if applicable.
  • Proof of physical presence in the US. Typically, this is 5 years of residence in the US before the birth of the child, but it may vary.
  • Passport photograph and fees.
  • Your child’s original birth certificate with the name(s) of the parent(s) and the date the document was filed.

In general, if at least one of the parents is a US citizen, you can pass your US citizenship to your child. However, surrogacy presents a unique set of complications because the gestational carrier is the surrogate mother and one or both of the parents may not have genetic linkage with the child.

The US Department of State has a special page dedicated to surrogacy cases. It requires the parent to be either genetically or gestationally related to the child born abroad through Assisted Reproductive Technology, or ART. What this means is that the parent must be either genetically related to the child or has carried the child herself. Since surrogacy always involves a surrogate mother, the latter is not applicable. The US Department of State lists several cases that the parent’s US citizenship can be transmitted to their child, assuming all other requirements as stated above are met.

  1. A male US citizen is the father of the child and is genetically related to the child.
  2. A female US citizen is the legal mother (emphasis added – the female parent must be on the child’s birth certificate) and is genetically or gestationally related to the child.
  3. A US citizen is not genetically or gestationally related to the child but is married to a parent who is genetically or gestationally related to the child. This parent doesn’t have to be a US citizen.

In order to prove genetic relationship, DNA testing by an embassy-approved laboratory is required. If the no embassy-approved laboratory is located within Mexico, DNA testing may take several weeks or more to complete. In order to prove the legal parentage of the parent, the parent’s name must be present on the child’s birth certificate. In Mexico, the birth certificate will originally list the surrogate mother as the legal mother and the intended father as the legal father. The intended mother’s name will not appear on the birth certificate. If you cannot prove legal parentage through birth certificate, the birth certificate has to be amended by a court action called Amparo (more on this later).

Let’s summarize the above by using specific scenarios. Assume all other conditions are met and a surrogate mother carried the child.

Possibility of passing your US citizenship if you are a male intended parent

You are a …

1) Male US citizen married to a female (US citizen or non-citizen), using your own sperms and either donated eggs or your wife’s eggs

Since you are genetically related to the child and are on the child’s birth certificate as the legal father, US citizenship can be transmitted to your child and no Amparo is necessary.

2) Male US citizen in same-sex relationship, using your own sperms

Since you are genetically related to the child and are on the child’s birth certificate as the legal father, US citizenship can be transmitted to your child and no Amparo is necessary.

3) Male US citizen who is single, using your own sperms

Since you are genetically related to the child and are on the child’s birth certificate as the legal father, US citizenship can be transmitted to your child and no Amparo is necessary.

4) Male US citizen married to a female (US citizen or non-citizen), using donated sperms and your wife’s eggs

Even though you are not genetically related to the child, your wife is genetically related to the child. US citizenship can be transmitted to your child, but since the birth certificate does not list the your wife as the legal mother, Amparo is necessary to amend the birth certificate to list both of you as the legal parents.

5) Male non-US citizen married to a female US citizen, using your own sperms or donated sperms and your wife’s eggs

Even though you are the legal father of the child, you are not a US citizen. However, your wife is a US citizen and is genetically related to the child. Thus, the US citizenship can be transmitted to your child. Amparo is necessary to amend the birth certificate to prove that your wife is the legal mother of the child.

6) Male non-US citizen married to a male US citizen, using your partner’s sperms

Since your partner is genetically related to the child and is on the child’s birth certificate as the legal father, US citizenship can be transmitted to your child and no Amparo is necessary.

7) Male US citizen or non-citizen, married or single, using donated sperms and donated eggs

Since none of the parents are genetically or gestationally related to the child, US citizenship cannot be transmitted to your child.

Possibility of passing your US citizenship if you are a female intended parent

You are a …

1) Female US citizen married to a male US citizen, using your own eggs or donated eggs and your husband’s sperms

Since your husband is genetically related to the child and is on the child’s birth certificate as the legal father, US citizenship can be transmitted to your child and no Amparo is necessary.

2) Female US citizen married to a male (US citizen or non-citizen), using your own eggs and donated sperms

Since you are genetically related to the child, US citizenship can be transmitted to your child. Amparo is necessary to amend the birth certificate to prove that you are the legal mother of the child.

3) Female US citizen married to a male non-US citizen, using your own eggs or donated eggs and your husband’s sperms

Since your husband is genetically related to the child, you can transmit your US citizenship through your husband. While US citizenship can be transmitted to your child, Amparo is necessary to amend the birth certificate to prove that you are the legal mother of the child.

4) Female US citizen married to a female US citizen, using donated sperms and your own eggs or your wife’s eggs

Since at least one of you is genetically related to the child, US citizenship can be transmitted to your child. Amparo is necessary to amend the birth certificate to prove that the female parent who is genetically related to the child is the legal mother of the child.

5) Female US citizen married to a female non-US citizen, using donated sperms and your wife’s eggs

Since your wife is genetically related to the child, you can transmit your US citizenship through your wife. While US citizenship can be transmitted to your child, Amparo is necessary to amend the birth certificate to prove that both of you are the legal mothers of the child.

6) Female US citizen who is single, using donated sperms and your own eggs

Since you are genetically related to the child, US citizenship can be transmitted to your child. Amparo is necessary to amend the birth certificate to prove that you are the legal mother of the child.

7) Female non-US citizen married to a male US citizen, using your own eggs or donated eggs and your husband’s sperms

Since your husband is genetically related to the child and is on the child’s birth certificate as the legal father, US citizenship can be transmitted to your child and no Amparo is necessary.

8) Female non-US citizen married to a female US citizen, using your wife’s eggs and donated sperms

Since your wife is genetically related to the child, US citizenship can be transmitted to your child. Amparo is necessary to amend the birth certificate to prove that your wife is the legal mother of the child.

9) Female non-US citizen married to a female US citizen, using your own eggs and donated sperms

Since your wife is the US citizen and you are genetically related to the child, US citizenship can be transmitted to your child. Amparo is necessary to amend the birth certificate to prove that both of you are the legal mothers of the child.

10) Female US citizen or non-citizen, married or single, using donated sperms and donated eggs

Since none of the parents is genetically or gestationally related to the child, US citizenship cannot be transmitted to your child.

What to Do In Order To Amend The Birth Certificate

If your legal parentage is not established because your name is not on the birth certificate, you can engage in several legal actions with the assistance of an attorney who specializes in surrogacy cases. One option is to pursue an Amparo, a legal action filed in local courts. In this process, you demonstrate that you are the child’s legal parent, rather than the surrogate. This approach is supported by the 2021 Supreme Court decision which established that parentage is determined by procreational will rather than genetic connection. A successful Amparo will result in the removal of the surrogate’s name from the birth certificate and the addition of your and/or your partner’s name, legally affirming your status as the parent. If you or your partner are Canadian, this will enable you to transfer your citizenship to your child. Note, this legal process usually takes about 1 to 3 months, during which time you must remain in Mexico. As of July 19th, 2024, most intended parents are issued a provisional birth certificate showing only your name(s) in about a month.

Alternatively, a more advantageous approach may be to secure a “pre-birth order” by filing a paternity lawsuit in local courts while the surrogate is still pregnant. This action serves the same purpose as an Amparo, ensuring that your full parental rights are recognized and that your name, rather than the surrogate’s, appears on the birth certificate from the time of birth, thus eliminating the need for an extended stay in Mexico post-birth. However, it’s important to note that in Mexico City, the success rate for this action is about 50%, but significantly lower in other states.

If you choose to undertake surrogacy in states like Tabasco or Sinaloa, where surrogacy is regulated, you might be able to secure a similar “pre-birth order” during the pregnancy. This could also significantly reduce the time required to stay in Mexico following your child’s birth. There is an agency operating in Sinaloa. Please read our guide on surrogacy in Sinaloa.

Applying for Your Child’s Passport

Once your child has the CRBA, you can get your child’s passport. Typically, you apply for CRBA and the passport at the same time.

Proving Your Parentage

CRBA is a proof of US citizenship of your child at birth, not proof that you or your partner is the legal parent of the child. If you are the parent transmitting US citizenship to your child, you will be (and must be) on the CRBA. If you are the biological parent of the child but your partner is transmitting his or her US citizenship to the child, then both of you should be on the CRBA. If only you are on the CRBA as a parent transmitting the US citizenship to your child, you have a choice to add your partner to the CRBA if you can prove that your partner is connected to the child.

Because CRBA is not a proof of legal parentage, your partner who is not biologically related to your child might want to pursue a second parent adoption. Adoption process will formally recognize the equal parental rights of your partner, but it may involve cost and time when you are back in the US. It is advisable that you consult a family lawyer in your state to see if that’s something you want to do.

What If I’m a Green Card Holder (Lawful Permanent Resident)

Generally, if you are a Green Card holder (LPR, or Lawful Permanent Resident), your child does not require an immigrant visa to travel to the US if the following conditions are all met:

  • Your child was born during the LPR mother’s temporary visit abroad (in our case, Mexico),
  • Your child’s admission to the US is within 2 years of birth, and
  • The accompanying LPR mother or father is making their first entry to the US since the child’s birth.

The required documents are:

  • Green Card or a valid US re-entry permit or an SB-1 immigrant visa
  • Evidence that you are a Green Card holder and have been abroad for less than a year
  • Valid passports for you and your child, and
  • The child’s birth certificate listing both the mother and the father

It seems that in order for these condition to be met, the child has to be born while the LPR mother is visiting Mexico, not the LPR father. Furthermore, the US Customs and Border Protection doesn’t mention whether the birth certificate has to list both the intended mother and father. Depending on the interpretation of the law, the US embassy may require the birth certificate to list the intended parents and not the surrogate. It is advisable that you contact an immigration lawyer before you start the journey.

Using Your Child’s Mexican Passport to Exit Mexico

Since your child is born in Mexico, he or she automatically acquires Mexican citizenship and can be issued a Mexican passport. Some people have previously returned to their home country using a Mexican passport. However, getting a Mexican passport is generally time-consuming, taking between 3 and 6 months. Also, Mexican citizens generally require a visa to enter the United States for most purposes, including tourism, business, or transit. I’m not sure if it applies to children born through surrogacy. It is advised that you consult an immigration lawyer.

In many cases, it may not be feasible to leave the surrogate’s name on your child’s birth certificate. Keeping the surrogate’s name on the birth certificate poses legal risks for the surrogate because it implies she has full parental rights and responsibilities. Should the intended parents depart Mexico with the child, the surrogate could face legal accusations of criminal abandonment. Therefore, many surrogates and their legal representatives often insist on removing their names from the birth certificate through an Amparo process.

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