US embassy has a webpage on surrogacy and ART in Mexico, written for American intended parents looking to undertake surrogacy in Mexico. Its page can be accessed here. While it provides valuable information, some parts need to be expanded so as to provide more context and details. I’ve seen that some intended parents became overly concerned about pursuing surrogacy in Mexico because they don’t know how they can mitigate the risks and concerns raised in the US embassy’s article. In this blog entry, we’ll try to dissect what’s written on the webpage and provide more details so intended parents can make informed decisions.
“There is no legal framework to protect parents who pursue surrogacy in Mexico, despite agencies and clinics promoting Mexico as a safe, legal destination for commercial surrogacy.”
This is generally true but requires some expansion. In most parts of Mexico, there are no legal frameworks regarding surrogacy. Popular surrogacy destinations such as Mexico City, the state of Quintana Roo where Cancun is located, and the state of Jalisco do not have any provisions in their Civil Code about surrogacy. This means that surrogacy agreements cannot be upheld or enforced in the local court. There have been some Amparo trials in which the intended parents asked the court to enforce their surrogacy agreement under voluntary jurisdiction, which is a type of non-contentious trial. In these cases, the court has rejected such application, citing that their jurisdiction does not have a legal framework for surrogacy, so they could not enforce their agreement.
In the states of Tabasco and Sinaloa, there are state-level legal framework for surrogacy. Their frameworks outline such things as who should be the legal parents and how a surrogacy agreement should be structured. These states also allow a pre-birth order, a court order issued before embryo transfer, that directs the civil registry to issue a birth certificate with the intended parents’ name(s) only when the child is born. While the state laws don’t allow foreign intended parents or LGBTQ+ intended parents to access surrogacy, the Mexican constitution protects individuals from discrimination based on marital status, nationality, or sexual orientation. The Supreme Court ruling in 2021 confirmed that this ban on discrimination applies to forming a family through the use of Assisted Reproduction Technologies.
In all parts of Mexico, foreign intended parents can use a legal instrument called Amparo to protect their right to access surrogacy and to have them legally recognized as the legal parent(s) of the baby born through surrogacy. Intended parents can initiate a court action called Amparo trial after the birth of the child. In this trial, intended parents can show the court that they have commissioned the birth of the baby, and therefore, only they should be in their baby’s birth certificate. A favorable ruling would order the Civil Registry to issue a birth certificate with only the intended parent(s)’ name(s). According to my own research into the Mexico Amparo database, a large majority of these trials have resulted in a successful ruling. In the states of Tabasco and Sinaloa, intended parents can take advantage of their legal framework and initiate an Amparo trial before embryo transfer in order to obtain a pre-birth order.
In short: While in most parts of Mexico, there is no legal framework for surrogacy, the states of Tabasco and Sinaloa do have surrogacy laws. In all parts of Mexico, intended parents can use Amparo to make sure they are recognized as the legal parents of their child.
“Mexican surrogacy law is incomplete and open to wide interpretation. Surrogacy agreements between foreign and/or same-sex intending parents and gestational mothers are not uniformly enforced by Mexican courts.”
As stated earlier, there are no Mexican surrogacy laws in most jurisdictions other than in the states of Tabasco and Sinaloa. In popular surrogacy destinations such as Mexico City and Cancun, surrogacy agreement cannot be enforced due to lack of provision for surrogacy in their Civil Code. Surrogacy agreement should still be drafted and signed between intended parent(s) and their surrogate, however, since it can be used to prove your procreational will, the basis of legal parentage in Mexico according to the 2021 Supreme Court ruling, during Amparo trial or when you apply for a passport for your child. In states of Tabasco and Sinaloa, surrogacy agreement entered in accordance to their civil code provisions can be enforced by the court.
When an intended parent wants a birth certificate that lists only their name(s), they typically initiate an Amparo trial. This trial takes place in a local court, and the case is assigned to a judge. The judge may or may not be friendly to surrogacy or same-sex intended parents. While the outcome is normally favorable as long as your lawyer is experienced in surrogacy cases and you have done everything correctly (such as retaining embryo transfer reports and hospital records), the process can still take a long time if you are assigned to an unfriendly judge. This introduces an element of uncertainty that is not present in US or Canada where there are strong legal frameworks for surrogacy. Amparo trials can take as short as a couple of weeks, or as long as 3 month to 4 months, so intended parents should be prepared for the possibility of staying in Mexico for 1 to 3 months after the birth of their child.
In short: Whether surrogacy agreements can be enforced depends on which state you pursue surrogacy in. The Mexican constitution treats all intended parents equally regardless of nationality or sexuality, but if you need to take a court action called Amparo trial, how long the trial will take and how onerous the trial might be may depend on the judge you are assigned to.
“Intending U.S. citizen parents have suffered administrative and legal impediments to documenting children born through surrogacy. Some parents have encountered months-long delays in Mexico while waiting for court decisions on parental rights and custody.”
Some American intended parents have faced roadblocks when they tried to get a birth certificate of their child that lists on their name(s). For example, for single female intended parent and female same-sex couples, their name(s) is not listed on their child’s birth certificate by default because the surrogate mother’s name is on the birth certificate. In order for them to be able to get a CRBA for their child, they must get a favorable ruling in an Amparo trial that orders the Civil Registry to issue a birth certificate in their name(s). As stated earlier, this trial may take up to several months. This is especially true if they have not had a good legal representation while undergoing surrogacy and if their procreational will have not been well-documented.
“Clinics that offer “VIP” packages such as expedited embassy/consulate appointments, tailored delivery dates, or birth documents that omit the gestational mother are often operating outside Mexican law.”
Whether you can get an expedited embassy appointment is up to the policy of the embassy of your country of origin. If you need an expedited appointment, inquire your embassy directly.
An agency or a clinic may offer a “tailored” delivery date if the clinic offers C-section delivery. A planned C-section is common in Mexico. When you and your surrogate agree that delivery will be done through C-section, your OBGYN will be able to schedule the delivery at about 39 weeks of gestation. While some intended parents are opposed to C-section because of its risks to fetus and the surrogate, planned C-section delivery can make the delivery schedule more predictable for intended parents. Intended parents are asked to come to Mexico about 3 to 5 days before the scheduled C-section. In contrast, for natural, vaginal delivery, the delivery schedule is more or less unpredictable, so intended parents may have to come to Mexico up to a month before the due date.
With regard to the “birth documents that omit the gestational mother”, as stated before, it is the constitutional right of intended parents to ask the court to order the Civil Registry to issue a birth certificate that lists only the intended parents’ name(s). Mexico does have a problem with corruption, and some people may try to obtain a birth certificate or other birth documents that omit the surrogate without going through Amparo trial – this is illegal and therefore highly discouraged.
“Although it is rare, the gestational mother could assert her parental rights at any point during the surrogacy process regardless of signed and notarized contracts relinquishing those rights.”
Since in most jurisdictions, there is no legal framework for surrogacy, surrogacy agreements are not enforceable in court. This theoretically makes it possible for a surrogate to claim parentage during or after surrogacy. This risk makes psychological screening and counseling of surrogate that much more important. If you are using a competent agency, they will make sure that your surrogate knows that the child they are carrying doesn’t belong to her. During pregnancy, your surrogate should undergo ongoing counseling to make sure your surrogate is not developing attachment to the fetus.
While the risk of the surrogate asserting her parental rights after birth is small, successful Amparo trial that results in a birth certificate that lists the intended parents’ name(s) only can make sure only the intended parents’ are recognized as the legal parents.
“Given the complex nature of surrogacy cases, you should prepare for the possibility of long delays in documenting your child’s citizenship.”
The amount of time needed for exit process after the birth of your child depends on many factors including:
- Requirements by your country’s embassy for getting a passport for your child. For example, if DNA test is required, this may add additional 2 to 4 weeks to the process.
- Whether you get a judge that is friendly or unfriendly to surrogacy cases, if you are doing the Amparo trial. Unfriendly judge may delay the process by requiring you to submit more documentations.
- Whether you need to get a Mexican passport for your child. This is when your country does not issue a passport for your child because they don’t recognize surrogacy. Getting a Mexican passport is a time-consuming process because it requires successful conclusion of Amparo trial as well as additional verification steps.
- Labor strikes and holidays.
Some intended parents have exited Mexico within a month, while in extreme cases, some intended parents had to stay in Mexico for 5 to 6 months. The vast majority of intended parents go back to their country in 1 to 3 months. The important thing is for you to research the exit process thoroughly before you start the surrogacy process. For example, if you are a green card holder, you may want to delay surrogacy until you become a US citizen; as a lawful permanent resident, you have to sponsor your child under family class in order to bring your child to US, and sponsoring a child is a very slow process.
“Be aware that individuals who attempt to circumvent local law risk criminal prosecution. Mexican authorities have made arrests stemming from surrogacy cases. “
There have been cases where a surrogate was criminally charged with child trafficking when intended parents left the country with their baby. These cases stemmed from the fact that the surrogate remained on the baby’s birth certificate, and since she had received money and allowed the babies to leave the country, she was suspected of child trafficking.
“Your U.S. health insurance may not cover the cost of your child’s medical treatment in Mexico. Many hospitals, particularly private hospitals with higher standards of care, require payment up front, which could amount to tens of thousands of U.S. dollars. “
The cost of neonatal intensive care unit (NICU) varies widely between hospitals and the level of care that is needed. For example, a newborn requiring a stay in an incubator would require less level of care, and therefore cost, than a newborn suffering from respiratory distress syndrome and requiring a ventilator. Many hospitals charge about $1,000 USD to $2,000 USD per day for an incubator, but a more serious problem at an expensive hospital may cost an upward of $15,000 USD per day.
To mitigate this risk, intended parents may purchase newborn insurance (NICU insurance) from their agency. Also, some US insurance plans cover the cost of NICU born through surrogacy in a foreign country. It is important for intended parents to be prepared for premature delivery that may require NICU stay for days or weeks. If you don’t have an insurance that covers NICU costs at a foreign hospital, understand which hospitals charge a lot for NICU stay and which don’t.
Conclusion
While US embassy’s website offers invaluable insight, understanding details associated with surrogacy in Mexico can help prepare intended parents avoid risks. Particularly, intended parents are encouraged to research the legality of surrogacy in Mexico, legal steps that they can take to make sure they are recognized as legal parents, exit process and amount of time they might need to stay in Mexico after birth, and potential NICU costs and NICU insurance that they can purchase to cover these costs.