Q: I’m a gay intended parent. Can I pursue surrogacy in Mexico?
A: Yes, you can absolutely partake surrogacy in Mexico. The constitution of Mexico guarantees that no individuals should be discriminated based on their sexual orientation, gender identity and family status. In 2021, the Supreme Court in Mexico ruled that this kind of non-discrimination should apply to individuals who are trying to access assisted reproductive technology (ART) including surrogacy for the purpose of creating a family. Specifically, it ruled that everyone has the right to create a family, either naturally or through ART, and this should include people in LGBTQ+ community. In addition, it also stated that the rules should apply to all nationalities, not just Mexican nationals, and the legal parents of children who are born through ART should be those who commissioned the surrogacy.
The ruling clarifies the rules and expectations surrounding surrogacy in Mexico where there are no state-level legislation on surrogacy other than in two states. In the states of Tabasco and Sinaloa, there are civil codes on surrogacy that restrict surrogacy to Mexican heterosexual couples only. However, because of the Supreme Court ruling, surrogacy is, in fact, allowed to take place. In Sinaloa, a surrogacy agency helps international gay intended parents obtain a pre-birth order, naming them the legal parents while their surrogate is pregnant.
If you are a gay intended parent, you may need to take an additional step in securing your legal parentage after the birth of your child, if you don’t get a pre-birth order. In Mexico, the surrogate mother and the intended father go into the child’s birth certificate by default. If you are male in a same-sex relationship, your partner will not be in the birth certificate. If you are female in a same-sex relationship, you and your partner will not be in the birth certificate. This can pause problems when you are trying to pass on your citizenship to your child or apply for a passport for your child. If you need to obtain a birth certificate that shows your name and/or your partner’s name only, you will have to initiate a court action called Amparo trial. This is a trial where you tell the judge that you and/or your partner commissioned the birth of your child, so you and/or your partner should be on the birth certificate, not the surrogate. Upon receiving a favorable judgement, the Civil Registry is ordered to issue you a birth certificate of your baby that shows only your name and/or your partner’s name.
While there is no legal framework for surrogacy in Mexico other than two states, the Supreme Court ruling offers legal backing for the legitimacy of surrogacy pursued by international LGBTQ+. This is a significant advantage compared to other countries that have no legal framework and no favorable court ruling on surrogacy.