Updated: June 29th, 2024 under the Pre-birth Order section.
Many people in LGBTQ+ community used to believe that they cannot ever have a child on their own. Many people still do today. At the same time, more and more people in the LGBTQ+ community are realizing that assisted reproductive technology makes it possible for them to also have their own biological child. Today, many LGBTQ+ are becoming parents through the process of surrogacy. Surrogacy is the process where a woman called a surrogate mother becomes pregnant with your embryo created from your biological materials using a medical procedure called in-vitro fertilization (IVF). If you have a strong desire to raise your own biological child rather than having an adopted child, surrogacy is there to make it possible.
IVF and Surrogacy for Males
If you are a male, the combination of IVF and surrogacy will allow you to bring home a genetic child of your own. How does it work?
IVF
IVF is in-vitro fertilization, a process where an egg is fertilized by sperm outside of the body, typically in a lab. As a male, you would donate your sperms to be used in this process so that the child is related to you. If you are in a same-sex relationship, you will have to choose whether you will use your sperms or your partner’s. This decision is a personal choice between you and your partner, but one health-related factor that can come into play is whether your sperms are healthier or your partner’s. You might choose to use your partner’s sperms rather than your own if:
- Your partner’s sperms have better sperm analysis result, such as having better volume, concentration, motility, morphology, viability, or DNA fragmentation.
- You carry a genetic disorder that can be passed on to the child but your partner does not.
- Your partner has fathered a child in the past, which means his sperms have a known fertilization potential.
- You have sexually transmitted infections (STIs) which can affect sperm qualities.
- You are unable to produce sperms due to vasectomy, cancer treatment, or other medical reasons.
What the above means is that the child will be genetically related to only one partner, if you are in a same-sex relationship. For this reason, some male intended parents choose to pursue a sibling journey where they will use two surrogates and both of their sperms to attempt to have two children born at around the same time. (More on this topic later)
Because none of you will be able to donate an egg, an egg donor is necessary. In Mexico, egg donors are usually anonymous. You and/or your partner will be given an egg donor catalog so you can choose an egg donor that you like. The chosen egg donor will undergo ovarian stimulation and egg retrieval process to collect her eggs.
Once you or your sperms are collected in a Mexican clinic and the donated eggs become available, the sperms will be artificially fertilized with the eggs. This process is the IVF process. At the end of this process, you’ll have embryos created. Healthy embryos are chosen and frozen until a surrogate is ready to receive the embryo through the embryo transfer process.
Surrogacy
Surrogacy is the process of having a woman, who is unrelated to you, carry pregnancy for you until birth. This woman is called a surrogate (or a surrogate mother). If you have a friend or a family member who can be a surrogate for your fetus, great; you can probably just do surrogacy in your home country as many countries do allow surrogacy if it’s altruistic – that is, if no money is exchanged. However, if you require the help of an unrelated woman, you’ll have to find her. This process is called surrogate matching.
In countries where commercial surrogacy is banned, surrogate matching will take years. This is because there are very few women who are willing to carry a stranger’s child with no compensation. There are a few countries where commercial surrogacy is legal or at least supported by the country’s high courts, and there are even fewer countries that permit commercial surrogacy for LGBTQ+.
Scroll down to this chart to see which countries LGBTQ+ intended parents can pursue surrogacy in.
Once you are matched with a willing surrogate, a surrogacy contract is signed and embryo transfer starts. In this process, a fertility specialist will oversee the preparation of the surrogate’s uterus to ensure it is receptive to the embryo. This typically involves a regimen of hormones and medications that thickens the uterine lining. On the day of transfer, the doctor will use a catheter to gently place the embryo directly into the surrogate’s uterus. After the embryo transfer, the surrogate will be closely monitored for signs of pregnancy. A blood test, known as a beta hCG test, is usually performed about two weeks after the embryo transfer to confirm pregnancy. If successful, the surrogate will continue with hormonal support and regular check-ups until successful birth at a Mexican hospital.
IVF and Surrogacy for Females
For single females and females in a same-sex relationship, a sperm donor is needed and IVF procedure is used to create embryos in a lab. If you are a female in a same-sex relationship and if you or your partner can carry a pregnancy to term, then no surrogacy would be needed. If this is the case, it would be probably better to create embryos and carry pregnancy in your own country. However, if neither you nor your partner can carry pregnancy due to any reasons, then surrogacy is needed.
IVF
In IVF procedure, your or your partner’s egg is artificially fertilized with a sperm of an anonymous sperm donor. The process is the same as the IVF for males as written above. Because the sperm will likely come from a sperm bank, the quality of the sperm is assured. If you are making embryos in a Mexican clinic, you would go through the same procedures as what an egg donor would go through. Namely, you would undergo ovarian stimulation where your ovaries are stimulated by using hormones, then undergo egg retrieval to retrieve multiple eggs.
More commonly, though, many single women and couples choose to create embryos in their home country, and ship the embryos to a Mexican clinic for embryo transfer into a surrogate. Unlike males using an egg donor, surrogacy agencies in Mexico don’t usually offer live birth guarantees to females using their own eggs. This lack of guarantee pretty much negates much of advantage in creating embryos in a Mexican clinic. In general, ovarian stimulation takes about 2 weeks and the patient undergoing ovarian stimulation needs to visit the clinic every 2 to 3 days in order to monitor the growth and number of developing follicles. Based on the examination results, the doctor adjusts the medication dosages. There isn’t much advantage in staying in Mexico for 2 weeks or more for this process for most intended parents other than to not have to ship their embryos across the border.
Surrogacy
Surrogacy process for female LGBTQ+ intended parents is similar to that for male patients. A surrogate is matched to you with the help of your surrogacy agency, and an embryo is transferred to your surrogate’s womb after thickening the uterine lining. On the day of transfer, your fertility specialist will inject the embryo into the surrogate’s uterus. If the embryo implants successfully onto the uterine wall, the embryo transfer is successful. A beta hCG test is performed to monitor for the signs of pregnancy. hCG is a hormone produced by the placenta shortly after the embryo attaches to the uterine lining. hCG can be detected within 3 weeks after conception with a urine test, and it rises rapidly in a healthy pregnancy, peaking at around the end of the first trimester. So, if the doctor detects rapidly rising levels of hCG over weeks, the pregnancy has happened and is going well.
Scroll down to the next section to see which countries permit LGBTQ+ to pursue surrogacy.
In Which Countries Can LGBTQ+ Pursue Surrogacy?
There are only few countries that legally permit LGBTQ+ individuals to pursue commercial surrogacy in which compensation is paid to a surrogate woman. In countries where only altruistic surrogacy is permitted, finding a surrogate for an LGBTQ+ intended parent is difficult. Waiting time to match a surrogate can be more than two or three years.
If you are LGBTQ+, Mexico, US, and Colombia allow for commercial surrogacy. If you are a single woman, Greece might also be a good choice. Take a look at the chart, below.
(If you cannot see the entire table, click here.)
| Country | Is surrogacy legal? | Backed by court? | Legal for LGBTQ+? | Legal for Single? | Is commercial surrogacy allowed? |
|---|---|---|---|---|---|
| Mexico | Unregulated* | Yes; Supreme Court 2021 | Yes | Yes | Unregulated, but de facto Yes |
| United States | Legal | – | Yes | Yes | Yes |
| Colombia | Unregulated | Yes; Constitutional Court 2009 | Yes | Yes | Unregulated, but de facto Yes |
| Argentina | Unregulated | None | No regulation | No regulation | No regulation |
| Georgia | Legal | – | No; married heterosexual couples only | No; married couples only | Yes |
| Ukraine | Legal | – | No; married heterosexual couples only | No; married couples only | Yes |
| Greece | Legal, but intended mother requires medical justification and court order | – | No; heterosexual couples only | Only for single women | Yes (compensation is not payment in Greece) |
| Russia | Legal, but requires medical justification | – | No; heterosexual couples only | No | – |
* Surrogacy is regulated in the states of Tabasco and Sinaloa. In Sinaloa, while the state law allows surrogacy only for married Mexican couples, since the Mexican constitution guarantees freedom from discrimination based on marital status and nationality, surrogacy is de facto allowed for everyone in that state.
As you can from the chart, Mexico is one of the few surrogacy destinations in the world that allows commercial surrogacy for LGBTQ+. The average wait time for surrogate matching is approximately 3 months to 6 months, but some intended parents are experiencing less match time, some longer match time.
Exit Process for LGBTQ+ and Birth Certificate
Even though the Supreme Court in 2021 ruled that surrogacy should be legal for everyone and urged each state to implement a legal framework for surrogacy, surrogacy is largely unregulated in Mexico. What LGBTQ+ has to be aware is the way their newborn’s birth certificate is issued because this could have an impact on processes like passing their citizenship to their child and getting a passport issued for him or her.
In the absence of “pre-birth order”, the birth certificate is almost always issued with the surrogate’s name as the mother. The intended parent who donated sperms is on the birth certificate as the father. For a single female and female intended parents in a same-sex relationship, this poses a potential problem because none of their names will be on the birth certificate. A birth certificate is an important document because it shows who are the legal parents of the child. The legal parents of the child have the full parental rights and responsibilities.
To remedy this, female intended parents can initiate a court action called Amparo. This court action seeks to have the court recognize the intended parent(s) as the legal parent(s), have their name(s) on the birth certificate, and remove the surrogate from it as well. This way, the female intended parent(s) will be the legal parents and the surrogate will relinquish her parental rights and responsibilities. Sometimes, this step is necessary for the female intended parents to pass their citizenship to their child and to get a passport issued to their child.
Male intended parents, on the other hand, will have an easier time as at least one of them will be on the birth certificate. Many of them, however, still choose to go through Amparo to remove the surrogate and add their partner’s name onto the birth certificate. They do so because many surrogates request to have their name removed from the birth certificate so they don’t run the risk of being charged with child abandonment when the intended parents go back to their country with their child. Some male intended parents also choose to go through Amparo to have their partner officially recognized as the legal parent of the child.
Each country has different legal requirements for passing one’s citizenship to his or her child born abroad, so the exit process will be different depending on where you are from. Read these exit guides for more information: Guide to the Exit Process for Canadian Intended Parents, Guide to the Exit Process for American Intended Parents.
Is there a pre-birth order in Mexico?
A pre-birth order is a court order naming the intended parent(s), not the surrogate, as the legal parents, before the child is born. If an intended parent obtains a pre-birth order, the birth certificate will have the name(s) of the intended parent(s). Pre-birth order is common in some states in the US as well as countries where surrogacy is legal and well regulated, such as Ukraine.
In Mexico, there are no pre-birth orders in vast majority of jurisdictions. However, even the lawyers disagree as to the feasibility of obtaining a pre-birth order in Mexico. Some lawyers claim that there is no pre-birth order because a baby, for legal purposes, will be considered as a person only after he or she is born under Mexican law. Some lawyers, on the other hand, claim that some judges in places like Mexico City and the state of Jalisco do grant a pre-birth order. Some intended parents have successfully gotten a pre-birth order in Mexico City and in the state of Jalisco, but remember that there is currently no legal framework for surrogacy in these two jurisdictions, so getting a pre-birth order through Amparo trial before birth is no way guaranteed.
Some states in Mexico regulate surrogacy by law. Tabasco and Sinaloa have a state-level legal framework to recognize the legality of surrogacy. If surrogacy takes place in Sinaloa, an intended parent may obtain an authorization for surrogacy from a court before embryo transfer takes place. After obtaining a favorable court ruling, the intended parent will receive an official birth certificate with only the intended parents’ name(s) when the child is born.