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Step in Surrogacy 5: Exit Process

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

If you have welcomed your surrogacy baby in Mexico, you have every reason to be ecstatic. However, the battle isn’t over, yet! Now, you have to think about how to get your child back to your country. In order for your baby to get back home, he or she needs a passport, which is a travel document issued by the country that he or she is a resident of. In general, there are 3 ways that you can do this.

1. Get your child a passport from your country

A more common approach taken is to get your child a passport from your country. If you are the citizen of your country, the first step is to pass your citizenship to your child. This is called citizenship by descent and most countries allow parents to pass on their citizenship to their child. However, the specific rules governing this principle are different in each country, so please read the country-specific exit process guides I have prepared:

Guide to the Exit Process for Canadian Intended Parents

Guide to the Exit Process for American Intended Parents

For example, if you are an American citizen, you can pass your citizenship to your child if one of the following requirements 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.

The exit guide above analyzes these requirements in detail, so please read it over if you are an American citizen. Before you embark on a surrogacy journey in Mexico, understand the exit process pertaining to your home country and your specific situation.

In some cases, you need to amend your child’s birth certificate in order to show that you and/or your partner are the legal parents of the child. Mexican birth certificates typically list the intended father as the legal father and the surrogate mother as the legal mother. If your country requires that you and your partner are legal mother and father of the child, you may need to prove this by presenting an amended birth certificate showing your and your partner’s names.

In Mexico, you can have the birth certificate amended by way of a constitutional challenge in the federal court. This is known as the Amparo process. You will have to hire a lawyer who is experienced in surrogacy cases, go to the court with your surrogacy contract, birth certificate, hospital records, and other documents necessary, and tell the judge that you and/or your partner should be the legal parents. This argument is supported by the 2021 Supreme Court ruling which stated, in part, that the legal parents of babies born through surrogacy should be intended parents who have the procreational will. In other words, if you can prove that you commissioned the birth of your child, not the surrogate, you can have your name attached to the birth certificate and have your surrogate’s removed from it at the same time. Amparo is generally successful if argued by a competent lawyer, and it may take anywhere between 1 and 3 months. Most cases take around 1 month before you can get issued a provisional birth certificate with only your name(s). Intended parents have to stay in Mexico during this period of time.

After your child gets the citizenship, it’s easy to get the passport from your country of origin. Often, you just apply for your child’s citizenship and passport at the same time in the same embassy.

2. Get your child a Mexican passport

Mexico recognizes “jus soli” (right of the soil), which means that a child born on Mexican soil can be a Mexican citizen regardless of the citizenship of his/her parents. Your child born through surrogacy in Mexico can acquire a Mexican citizenship and passport if you chooses this path. If you are the intended father whose name is listed on the birth certificate of your baby, you can obtain a Mexican passport for your baby with or without your surrogate’s name on the birth certificate. You have to follow the following procedure:

  1. Make an appointment at a delegation of the Secretariat for External Relations or a state or municipal office.
  2. Go to the appointment with the surrogate as both of the “parents” have to be present at the appointment.
  3. To prove your child’s identity, you have to present your baby’s certified copy of the birth certificate. As a foreigner, the intended father has to present a proof of identity document whose name must match the father’s name on the birth certificate. Your passport should suffice. The surrogate must present her proof of identity such as an electoral card or a passport. This step proves that you and the surrogate are the legal parents of the baby.

Note that in order for this route to be successful, the surrogate must consent to be present at the appointment. Also note that you cannot mention that the baby is through surrogacy.

It is not advisable that you follow this route. Intended parents have reported complicated paperwork requirements and much uncertainty in the timeline and the outcome. The length of time needed may be between 3 and 6 months.

One advantage of this method is that you don’t need to do Amparo, which is a court proceeding to amend the birth certificate. However, there are several points to consider if you intend to leave the surrogate’s name on the birth certificate.

  • Some lawyers and surrogates require you to remove the name of the surrogate from the birth certificate through Amparo. Surrogates often don’t want to be recognized as the legal parents of the surrogacy babies for the rest of their lives. In the past, some surrogates have been charged with child abandonment when the child left the country with the intended parents.
  • This procedure doesn’t work if you are a single intended mother since the birth certificate will not have your name. Since you are single, you cannot rely on your male partner to do the above procedure, either. You will have to go through Amparo to have your name stated on the birth certificate, then complete the procedure to get your child a Mexican passport.
  • Keeping the surrogate’s name on the birth certificate may create some legal complications for you down the line (more about this later).

Can I go back to my country with my baby with a Mexican passport?

The answer to this question depends on which country you are going back to. In general, if your country doesn’t require Mexicans to have a visa, then, it is relatively quick and easy. However, if your country require a Mexican to get a visa to enter the country, you will have to apply for a visa for your child. For example, as of February 2024, Canada requires visitors from Mexico to have a valid visa, and your child will now likely need to have a temporary resident visa (TRV). Application for a TRV may take from several weeks. Similarly, the US also requires a visa from visiting Mexicans.

3. Get your child to the country you are permanently residing in

If you reside in a country where you are not a citizen of that country, yet, you might be able to get a visitor visa for your child. In some cases, you won’t even require a visa to bring your child to the country you reside. An example is if you are the Green Card holder (LPR, or Lawful Permanent Resident) in the United States. If you are a female (not male) intended parent who is a Green Card holder, you can bring your child back to the United States if you pass the following 3 conditions:

  • Your child was born during the LPR mother’s temporary visit abroad,
  • 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.

For details of this path, read the Guide to the Exit Process for American Intended Parents.

In other cases, you may have to sponsor your child in order to get him or her a visa to enter the country you are residing in. For example, if you are a permanent resident of Canada who is not married to a Canadian citizen, your child will not automatically become a permanent resident of Canada. You will have to either sponsor your child as a dependent under the family class in order to come back to Canada. Note that the application process may take 12 months or more, making this impractical for most people.

Should I remove the surrogate’s name from the birth certificate?

As stated above, it is possible to amend the birth certificate so that only your and/or your partner’s names are on the birth certificate. This is through a court action, which may take a couple of months after the birth of your child. So, many intended parents wonder whether it is necessary to do the Amparo process and whether there are disadvantages in leaving the surrogate’s name on the birth certificate. Here are some things you need to consider:

  • Many surrogates and their lawyers require you to remove the surrogate’s name from the birth certificate. Many surrogates do not want to be the legal parents of the baby because being a legal parent means there are legal parental responsibilities associated with it.
  • In the past, some surrogates have been charged with child abandonment when the intended parents went back home with their baby.
  • The last name of the baby in Mexico typically consists of the combination of the last name of the father and the last name of the mother. If the birth certificate lists the intended father and the surrogate mother, the baby might have a last name that includes the surrogate’s last name. If a second birth certificate is not issued in your home country, the legal last name of your baby might have both the father’s last name and the surrogate’s last name connected by a hyphen (e.g. Zhang-García). Whether you can get a second birth certificate for your child and whether you can change the legal last name of your child depends on which province or state you reside in. Consult a family lawyer in your jurisdiction.
  • Because the original birth certificate is often used as a proof of legal parentage in many countries, in your home country, the surrogate may still be recognized as the legal mother. This may have unintended consequences when you are trying to do things for you child that requires parental consent from both parents. An example is enrolling your child to school, changing your child’s last name, etc.
  • If your partner’s name is not on the birth certificate, your partner may not be recognized as the legal parent of the child in your home country. Then, your partner might have to do a second-parent adoption when you go back to your country.

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