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Is Surrogacy in Mexico Legal? A Detailed Explanation

In short, sort of. In most states in Mexico, there is no law regulating surrogacy. What this means is that Mexican laws don’t explicitly support surrogacy or prohibit surrogacy. Surrogacy in Mexico is constitutionally permitted for all individuals, and this is affirmed by the Supreme Court ruling in 2021. However, because there are no legal framework for surrogacy in most Mexican states, I am always hesitant to say that surrogacy is “legal” in Mexico in the same sense that Canada and the US are. In countries where surrogacy is legal and backed by explicit legal framework supporting surrogacy, the intended parents are awarded full parental rights automatically at the time of the child’s birth, given they have followed proper legal procedures in pursuing surrogacy. With exception of two states in Mexico, namely Tabasco and Sinaloa where surrogacy is regulated, this is not the case. The pathway to recognition of parentage is somewhat more onerous in Mexico.

To understand the legality of surrogacy in Mexico, we will take a look at the history of surrogacy in Mexico and the landmark ruling by Supreme Court in 2021.

Brief History of Surrogacy in Mexico

Before 2021

Surrogacy used to be unregulated in Mexico until 1997 when the state of Tabasco introduced the first legislation that legalized surrogacy. This legislation was part of a broader effort to regulate assisted reproduction technologies, making Tabasco one of the few places in the world at that time to have such explicit laws concerning surrogacy. The laws were quite permissive, allowing both national and international intended parents to engage in surrogacy agreements.

Throughout 2000s and early 2010s, surrogacy was booming in many parts of the world. Surrogacy was booming in countries like India, Thailand, and Laos. As these countries experienced influx of international intended parents and abuse of local surrogates by unscrupulous agencies, these countries started to close off surrogacy to foreign nationals. Mexico experienced increasing number of people seeking international surrogacy as former destinations became unavailable one by one.

In 2013, the state of Sinaloa modified its laws to limit surrogacy to married couples with fertility issues. Similarly, in 2016, Tabasco modified its civil code to restrict surrogacy to married heterosexual couples who are Mexican nationals in order to curb the abuse and exploitation of local women by some agencies and intended parents.

Supreme Court Decision of 2021

On June 5th, 2021, the Supreme Court of Mexico made a judgement that found Tabasco’s restriction of surrogacy to Mexican citizens or married couples was unconstitutional. It stated that everyone, regardless of nationality, sexual orientation, marital status, or presence or absence of infertility should be able to access assisted reproductive technology such as surrogacy. It further legitimized surrogacy by stating that children born out of surrogacy should have the same rights as children born through natural pregnancy, and that parents of these children should be recognized on the basis of procreational will, not genetics.

The judgement left the specific implementation of laws to individual states, but did outline a guideline that individuals, clinics, and agencies should follow when arranging for a surrogacy service. Namely, these are:

  • Surrogacy should be made available to all people. It should be available to heterosexuals and LGBTQ+, married and single people, Mexican nationals and foreigners.
  • Children born out of surrogacy have the same rights as those born through natural pregnancy.
  • Parentage of children born out of surrogacy should be determined by the will to procreateParents who had the intent to have the child through surrogacy should be given parentage regardless of genetic linkage to the child.
  • Compensation for the surrogate should be fair and transparent. Fair and transparent terms should be included in agreement between intended parents and the surrogate.
  • Surrogate must freely consent to surrogacy agreement. A surrogate should fully understand the medical procedures and legal implications of going through surrogacy.
  • Agencies may help facilitate a surrogacy arrangement and may derive economic benefit from it.
  • The right to identity of children born through surrogacy is important. The parents who commissioned surrogacy should be the legal parents.

Reference

The implication of this ruling on the status and legality of surrogacy in Mexico is huge. It essentially says that restrictions placed on access to surrogacy in Sinaloa and Tabasco are unconstitutional and discriminatory, and tells other states to make surrogacy available to foreign intended parents. It also explicitly allows compensation made to a surrogate.

Intended parents now have the legal backing of Supreme Court decision to demand recognition of parental rights to their child born via surrogacy. They can use it in Amparo, a court action intended parents make to assert their parentage and remove the surrogate’s name from the birth certificate of their child (More on Amparo later).

In popular surrogacy destinations like Mexico City and Cancun, legal framework for surrogacy doesn’t exist. There is no law that automatically recognizes the intended parents to be the legal parents of the child upon birth. The surrogate mother is assumed to be the child’s legal mother and her name automatically goes onto your child’s birth certificate. If the surrogate is on the child’s birth certificate, the surrogate is given all the parental rights and responsibility to the child. Only the intended father who donated sperms goes onto the birth certificate. His wife or husband is not listed on the birth certificate when the child is born. If you are a female intended parent, your name will not be on the birth certificate. This creates some problems for the surrogate and/or the intended parent(s). For example:

  • If the surrogate’s name remains on the birth certificate, she assumes parental rights and responsibilities to the child. If the intended parent leaves the country with their child, the surrogate may be criminally charged with child abandonment. Anecdotally, this has indeed happened in the past.
  • The child’s last name in Mexico is a combination of the father’s last name and the mother’s last name. On his/her birth certificate, his/her last name would be your name and your surrogate’s name combined. Depending on which country and province / state you are from, your child’s official last name may contain your surrogate’s last name even after you go back home.
  • For some countries, your country’s passport may not be issued to your child if you and/or your partner is not on the birth certificate.

In order to obtain a birth certificate with only your and/or your partner’s name, you will have to initiate a court action. This court action is the Amparo. Amparo, in general, is a court action in Spanish-speaking world used to protect people’s constitutional rights. As mentioned before, the Supreme Court ruling in 2021 found that the parental affiliation should be determined by procreational will of the commissioning parents and that children have the right to have the correct parents assigned to them. Since the civil registry issuing the birth certificate contains the name of your surrogate, who should not be the legal parent according to the constitution, intended parents can sue the government in order to have their parentage recognized and only their name(s) placed on the birth certificate. This court action is done in the federal court in the jurisdiction where your child is born. By presenting the judge hospital records, your surrogacy agreement, and other official documents, you are essentially proving your procreational will and asserting your parental rights. The Amparo process may not always be fast or smooth. It generally takes 1 to 3 months. Recently, the process has been getting quicker. In most cases, intended parents are issued a provisional birth certificate with their name(s) only in a month. All Amparo cases involving petition to change the birth certificate has been successful to date.

You are definitely permitted to undertake surrogacy in most parts of Mexico, regardless of your sexual orientation, marital status, or nationality. You can use an anonymous sperm or egg donor, use IVF to create embryos, and pay a surrogate to carry your fetus to term. If you go through an Amparo trial, the birth certificate of your baby can show only your name as the legal parent(s) as the right to identity of a child is guaranteed by Mexican constitution. Many intended parents have taking this route after the Supreme Court decision in 2021 and they are now back home with their babies. So, it is a safe bet that you can, too. However, because there is no state-level laws surrounding surrogacy, you will need the help of a competent lawyer to navigate through the Mexican bureaucracy and court system.

You also have to research thoroughly to see if Mexico is the right surrogacy destination based on your specific situation. Sometimes, your country’s embassy places a restriction on whether you can leave Mexico with your baby. For example, as of April 2024, US embassy requires DNA test to prove the genetic linkage between you and your child before it can issue CRBA. This poses a problem for intended parents using donated sperms and donated eggs as they will not be genetically related to the child. Again, before starting a surrogacy journey, you should do a thorough research based on your specific situation.

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