Updated on August 29: Hybrid program
If you are a Canadian just like me, you might be choosing Mexico because you are frustrated with the long wait time for surrogates in Canada. Mexico is a popular destination for surrogacy for Canadians because of its proximity to Canada. It takes about 4 to 6 hours of flight to get to Mexico as opposed to European destinations, and Mexico is a more familiar destination to those who travel to places like Cancun for vacation.
The Disadvantage of Doing Surrogacy in Canada
Assisted Human Reproduction Act (AHRA) of Canada prohibits commercial surrogacy. What this means is that intended parents cannot pay a woman to carry their child beyond the expenses that can be proven by physical receipts. Specifically, the AHRA stipulates the following:
- No one is allowed to pay any compensation for another person to carry their fetus for the purpose of surrogacy. An intended parent can only pay expenses that the surrogate mother incurred as a result of surrogacy, such as maternity clothes, vitamin supplements, and transportation cost to the clinic for pregnancy care. These expenses have to proven by physical receipts.
- An intended parent may pay for the lost wages and bedrest if incurred by the surrogate. A qualified medical professional has to certify that continuing work may post risks to the surrogate or the fetus.
- No company or agents of a company is allowed to facilitate matching between intended parents and surrogates.
Essentially, surrogacy in Canada is restricted to altruistic cases. Most commonly, this is when a friend or a family member agrees to carry the fetus for the intended parent because of her inability to do so herself. Some agencies in Canada skirts the AHRA by acting as a consultant to the intended parents. They instruct the intended parents how to find and interview a surrogate without themselves presenting a surrogate.
While it is possible for a Canadian intended parent to find a surrogate, it is not without difficulty. Because surrogates are not allowed to be compensated beyond ordinary expenses, the number of surrogates is far smaller than the number of intended parents looking for a match. This has resulted in a very long wait time for Canadians to find a surrogate – often between 2 and 5 years. A Canadian intended parent also has to actively present themselves in the best light possible to a small pool of surrogates, including writing appealing letters, shooting a video, and even making a website.
The Advantage of Doing Surrogacy in Mexico
Unlike Canada, surrogacy in Mexico is not regulated at state level, and vast majority of Mexico states have no explicit laws governing surrogacy. Only 2 states have explicit regulations on surrogacy, namely the states of Tabasco and Sinaloa. The states of Tabasco and Sinaloa both have civil codes that disallow foreign intended parents from pursuing surrogacy. However, in 2021 Mexican Supreme Court ruled that everyone, regardless of family status, nationality, or sexuality, has the right to pursue surrogacy in Mexico. This means that whether you are straight or LGBTQ+, live in Mexico or abroad, or married or single, you can become a parent through surrogacy in any place in Mexico. The state of Sinaloa even legally permits pre-birth order.
The Supreme Court decision also indicated that fair and transparent compensation to surrogates should be legal. Because of this ruling, you can legally pay a surrogate mother for the services she renders. In Mexico, the average surrogate compensation is in the range of $300,000 pesos to $450,000 pesos, which is much lower than the compensation paid to surrogates in the United States. At the same time, the range of compensation is significant and attractive for Mexican women as it is roughly equal to one year of salary in Mexico. Because compensation is possible, the number of women willing to become a surrogate is far more than that in Canada. The typical wait time for a match is about 3 to 6 months (up to 12 months in some cases), which are far shorter than the wait time in Canada.
In addition, because of lower surrogate compensation and lower costs of medical services, the cost of surrogacy in Mexico is roughly half of that in the US. This is another attractive reason for Canadians to pursue surrogacy in Mexico.
What’s the Exit Process Like for Canadians?
If you are a Canadian citizen and if your name is on your child’s birth certificate, you can pass your Canadian citizenship to your child. Your child would be a Canadian citizen at birth; you just have to prove it to the Canadian embassy by presenting your child’s birth certificate and/or surrogacy contract and hospital records. However, there is an exception to this rule, called the second generation cut-off rule*: If you were born outside of Canada and inherited your Canadian citizenship at birth from your parent, your child born in Mexico will not automatically receive Canadian citizenship. If this applies to you, you may have to sponsor your child for permanent residency in Canada. Consultation with an immigration lawyer is strongly recommended in this case.
* Update on May 23rd, 2024: the federal government has indicated that it would reverse the second generation cut-off rule. It is planning to put forward a bill that grants Canadian citizenship to children who would not have qualified for it because of the rule. Instead, the parent passing citizenship to the child has to show that he or she resided in Canada for at least 3 years before the birth of the child. Source
Your child will not receive Canadian citizenship at birth for two more scenarios as described below:
- Your partner is a Canadian citizen and you are a permanent resident, and only your name is on your child’s birth certificate, or
- You are a Canadian citizen and your partner is not a Canadian citizen, and only your partner’s name is on your child’s birth certificate
In these cases, Amparo process would be needed to have the name of you and/or your partner on your child’s birth certificate so that your child can receive Canadian citizenship at birth. The Amparo process is a court process that aims to have you or your partner officially recognized as the legal parents of the child born through surrogacy. It also removes the surrogate’s name from the birth certificate, meaning that the surrogate is no longer considered a legal parent of the child. The timeframe of the Amparo process varies depending on which courtroom and judge you are assigned to, and it can be between 1 and 3 months, although some intended parents have been stuck in Mexico for 5 months or more. A competent lawyer experienced in surrogacy cases is needed to help you navigate the complexity of Mexican legal system.
Can I Bring Home My Child Without Going Through the Amparo Process?
The Amparo process can take 1 to 3 months, and that’s why some intended parents ask whether they can come back to Canada without going through the Amparo process. This means your child’s birth certificate will still have your surrogate’s name. It is certainly possible to come back to Canada with the surrogate’s name still on the original, Mexican birth certificate. This takes only 2 to 3 weeks. However, there are some points to consider.
- Often, the surrogate asks for her name to be removed from the birth certificate. This legally absolves her of any parental rights and obligations to the child. In the past, some surrogates have been charged with child abandonment when the intended parent left the country with the child.
- Some agencies and lawyers require that you go through the Amparo process to remove the surrogate’s name from the birth certificate for the above reasons.
- Once you come back to Canada, you will not be able to change the birth certificate. There will be no 2nd birth certificate issued by the Canadian government.
- It is customary in Mexico that the child gets the last name of both of the parents. That means your child’s last name might be recorded as your name-your surrogate’s name. While it is not impossible to change your child’s last name in Canada, this may involve making an application to the provincial government for changing your child’s last name or legal proceedings in your jurisdiction, adding time and expense.
It is advisable to talk to a family lawyer in your province to determine what the legal ramifications are in keeping the surrogate’s name on your child’s birth certificate.
Can I Bring a Surrogate To Canada to Do Embryo Transfer?
Some agencies offer a “hybrid program”. This is a program where a local Mexican surrogate travels to Canada and undergoes embryo transfer procedure in your local fertility clinic. Then, the surrogate would go back to her city in Mexico and give birth there. There are several advantages to this kind of program:
- If you like your fertility clinic and trust that they will do a better job than a Mexican clinic, you might feel more at ease having embryo transfer done by your local clinic.
- You don’t have to ship your embryos to Mexico. Shipping embryos to Mexico can be slow and expensive.
The potential disadvantages of this program are:
- You will typically have to cover the cost for the travel expense of the surrogate. This includes flight, hotel cost, transportation cost, and any cost associated with helping your surrogate with her VISA to enter Canada. If your local clinic does endometrial preparation as well embryo transfer, your surrogate may need to stay in Canada for a month.
- Your surrogate will need a VISA to enter Canada, and the waiting time for VISA may vary.
One might wonder if Assisted Human Reproduction Act (AHRA) allows for embryo transfer in Canada when the surrogate is compensated in Mexico. The short answer is, yes. The section 12(1) of the AHRA lists the prohibited actions involving compensation. While it prohibits reimbursement of “a surrogate mother for an expenditure incurred by her in relation to her surrogacy”, it does not say embryo transfer procedure is prohibited. Many Canadian clinics accepts embryo transfer procedure done to an international surrogate mother on behalf of an intended parent.
Remember that this blog serves as an general information only, and I strongly recommend you to talk to a qualified fertility lawyer in Canada if you are planning to do embryo transfer in Canada.