Q: Is it legal to get a birth certificate of my baby with only my name in Mexico?
A: Yes. In Mexico, you can legally get a birth certificate of your newborn to show only your name and/or your partner’s name. By default, when a baby is born in Mexico through surrogacy, the Civil Registry issues a birth certificate that shows the intended father’s name and the surrogate mother’s name. However, the Mexican constitution guarantees that the intended parents will be identified as the legal parents of the baby. This was affirmed by the Supreme Court ruling of 2021, which stated that
- Everyone, regardless of family status, sexual orientation, or nationality, should have the right to form a family.
- Parental filiation should be determined by the parents’ procreational will, not gestational or genetic relationship.
- Minors, regardless of how they are born, should have their parents correctly identified.
- and if the local government refuses to identify the intended parents as the legal parents in the form of the birth certificate having their names, the intended parents can sue the government to have their names on the birth certificate.
The last point is the basis of Amparo trial, which is a type of lawsuit that helps protect people’s constitutional rights. As intended parents, you (and not the surrogate) have a constitutional right to be recognized as the baby’s legal parents, regardless of whether you have a genetic link with the baby. When the Civil Registry denies your request to have a birth certificate with only the intended parents’ name(s), you can initiate an Amparo trial. In this trial, you prove to the judge that you are the one who has the procreational will. Upon success, intended parents can have their names on the birth certificate without the name of their surrogate. If you have a partner, your partner’s name can also go onto the birth certificate.
There are advantages to removing the surrogate’s name from your baby’s birth certificate.
- If your surrogate’s name is on the birth certificate, she would have the full legal rights and responsibilities of being a parent of your baby. She might also face legal troubles if you leave the country with the baby as she might be legally prosecuted for child abandonment or child trafficking.
- If you or your partner’s name(s) is not on the birth certificate, you may have a hard time applying for the passport for your baby. For example, in order to apply for CRBA for your baby, you must prove that you are the legal parent of the baby.
- The baby’s last name is the combination of the intended father and the surrogate mother’s last names, connected by a hyphen. You may or may not be able to change the last name of your child when you go back to your home country. This depends on the law of the jurisdiction that you live.
- Having the surrogate’s name on the birth certificate means that your child may have access to the surrogate’s estate upon her death. Some surrogates may not like that.
You have to be aware of some of the drawbacks of going through an Amparo trial to remove the surrogate’s name.
- Amparo trial has an unpredictable timeline. It typically takes about 1 to 2 months before you can get a suspended sentence. A suspended sentence is an interim sentence issued by the court; you can use it to order the Civil Registry to issue you a birth certificate without the surrogate’s name. There is no definitive timeline to get a suspended sentence. There are many courts that handle Amparo trials, and if you get a court that is favorable to surrogacy, you may get the sentence quickly. However, if you are unlucky enough to get a court that is skeptical of surrogacy, you may have to go through many hearings and submit many pieces of evidence before you can be granted an Amparo order. An Amparo trial, in this case, may take 4 to 6 months or more.
- Holidays and strikes in can disrupt court proceedings and prolong your stay in Mexico. For example, federal court closes for about 2 to 3 weeks during Christmas holiday period. Also, during labor strikes, courts may not be able to hear your case. The most recent strike occurred after the Mexican national election in 2024, and it lasted approximately 2 months.
- During Amparo trial, you must stay in Mexico. If you choose to stay in a decent Airbnb suite in a decent neighborhood, your monthly living cost may be about $3,000 to $5,000 USD. If you have to stay in Mexico for 3 to 4 months, it may cost you up to $20,000 USD in living expenses.
- Some countries are not friendly to surrogacy, and may question why your birth certificate doesn’t have a mother’s name (or why it doesn’t have a father’s name if it shows two mothers).
It is important for you to consult a family lawyer in your home country and a surrogacy lawyer in Mexico in order for you to make an informed decision.
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