Guide to the Exit Process for Canadian Intended Parents

Updated: Oct 16, regarding obtaining a birth certificate

Many Canadian intended parents visit Mexico for the purpose of surrogacy. Surrogacy is, for most part, unregulated, so it is important to understand the process of surrogacy, the legal status of your child, and the exit process post-birth. Exit process refers to the process you undertake after the birth of your child until you successfully (and legally of course) leave Mexico back to your home country.

Let’s first take a look at the legal status of your child after he or she is born through surrogacy.

Passing Canadian Citizenship to a Child Born Through Surrogacy

If you are a Canadian citizen, passing your citizenship to your child born through surrogacy on foreign soil is relatively easy. There are 2 options for passing your Canadian citizenship, according to the government of Canada. If either of the two applies to you, you can pass your citizenship to your child

1. You are the legal parent of the child, and you can prove this via your child’s birth certificate naming you as the legal parent and/or other records of surrogacy such as your surrogacy contract and hospital records. In this case, you don’t need to be genetically related to your child. Or;
2. You are genetically related to your child, and you can prove this via DNA test.

In essence, genetic linkage is not mandatory if you are the legal parent of the child. But, when are you not a legal parent of the child? You might not be the legal parent of the child if your name is not on your child’s birth certificate. This can happen in the following scenarios, assuming no court actions such as Amparo has been initiated by you (more on Amparo later).

1. You are a female intended parent. In Mexico, the legal mother of a child is assumed to be the surrogate who gave birth, and her name will be on the birth certificate instead of yours. If you are a single parent, your parentage may not be recognized unless you take a court action.
2. You are a male intended parent but you used your male partner’s sperm. In this case, your partner will be on the birth certificate as the legal father of the child. This may become a problem in terms of passing your Canadian citizenship to your child if your partner is not a Canadian citizen.

Sometimes, Canadian embassy may ask you to prove your genetic relationship to your child. There are certain scenarios where you might not be genetically related to the child:

1. You are a female intended parent and you used an egg donor. If your partner is a male, if you used his sperms, and if he is a Canadian citizen, this is still not a problem as he can pass his citizenship to your child. However, if you used a donated sperm and a donated egg, or if your male partner whose sperms were used is not a Canadian citizen, you may not be able to pass your citizenship to your child without modifying the birth certificate to include your name.
2. You are a male intended parent and you used both donated sperms and eggs. If this is the case, your child will not be genetically related to you.
3. In extremely rare cases, the DNA test shows you are not genetically related to your child even though your genetic material was used. This can be due to mistakes by the clinic during IVF procedures or embryo transfers, or it can be due to faulty DNA test, both of which are extremely rare. If you suspect the latter is the case, you may have to re-order a DNA test.

What to Do In Order To Obtain a Birth Certificate in Your Name(s) Only

If your name or your partner’s name won’t be listed on your newborn’s birth certificate by default, you can petition the court order the Civil Registry to issue a birth certificate in your name and/or your partner’s name only. This process is called the Amparo trial. During this process, you prove that you are the legal parent of the child, not the surrogate. This is backed by the 2021 Supreme Court decision which ruled that parentage is determined through procreational will, not genetic linkage. When you successfully obtain an Amparo (a constitutional protection offered by the court), you will obtain a birth certificate for your child that lists only your name and/or your surrogate’s name, without the your surrogate’s name. In other words, you are formally recognized as the legal parent of your child. If you or your partner is a Canadian, you’ll be able to pass your citizenship to your child. Note that this court process takes approximately 1 to 2 months during which you must stay in Mexico.

An alternative method is to secure a pre-birth order in either Tabasco or Sinaloa. These states have civil codes that regulate surrogacy. Although their civil codes do not permit surrogacy for foreign nationals or same-sex couples, the 2021 Supreme Court ruling have found that such restrictions are unconstitutional as they are discriminatory. This means that everyone, regardless of nationality, sexual orientation, or family status can access surrogacy in these states. In Sinaloa, foreign intended parents frequently use surrogacy services, and there is an agency in the state that facilitates this process. For more information, refer to our guide on surrogacy in Sinaloa. In order to obtain a pre-birth order, an intended parent would initiate an Amparo trial before embryo transfer. When they obtain a favorable ruling, the court will issue a directive for the local Civil Registry to register the birth in the name(s) of the intended parent(s) without the surrogate, when the baby is born.

There is also a chance to obtain a “pre-birth order” in Mexico City and the state of Jalisco. One agency claims to achieve this with a 50% success rate. I’ve seen at least 1 case of successful Amparo trial done in Mexico City and the state of Jalisco. Unlike in the state of Sinaloa, Amparo trial is initiated during the late first trimester or early second trimester of pregnancy in these jurisdictions. The success of such petition is not guaranteed because neither Mexico City nor Jalisco has any legal framework for surrogacy.

Applying for Your Child’s Passport

Once you have passed your Canadian citizenship to your child, you can apply for your child’s passport. You can apply for the passport of a child born abroad only if your child has Canadian citizenship and if you have the proof of parentage, which can be in the form of foreign birth certificate with your name on it.

Parentage of the Child Born Through Surrogacy

In Canada, legal parentage is determined by provincial law since family law is under provincial jurisdiction. If a child is born through surrogacy in Mexico to a Canadian citizen, the legal parentage must be established under the law of the province where the family resides upon their return to Canada.

For the purpose of citizenship, Immigration, Refugees and Citizenship Canada describes legal parents at birth as “The biological or non-biological parent listed on the original birth certificate or birth record(s) issued at the time of the child’s birth“. This seems to mean that if your and/or your partner’s name is on your child’s original birth certificate, you might have a strong claim to legal parentage of your child. If your or your partner’s name is not on the birth certificate, you or your partner may have to go through a formal adoption process in the province of your residence so that you or your partner can be recognized as the legal parent of the child. You should consult a family lawyer in your province if you are in doubt about your legal parentage.

What If I’m a Permanent Resident of Canada?

If you are a permanent resident of Canada, and if you don’t have a partner who is a citizen of Canada, your child born abroad does not become a permanent resident automatically. You or your spouse who is a Canadian permanent resident in Canada would have to sponsor the child as a dependent under the family class. You will require the service of an immigration lawyer to achieve this.

Using Your Child’s Mexican Passport to Exit Mexico

Since your child is born in Mexico, he or she can become a Mexican citizen. It is possible for him or her to be issued a Mexican passport. Note that applying for Mexican citizenship and passport on behalf of your child is complex, requiring an Amparo trial and many follow-up steps. Some Canadians have gone back to Canada with a Mexican passport. However, as of February 2024, Canada requires visitors from Mexico to have a valid visa, and your child will now likely need to have a temporary resident visa (TRV). Application for a TRV may take from several weeks. You may need to hire a lawyer to help you with obtaining a visa for your child.

Can I Go Back Home Without an Amparo Trial?

If you are a Canadian citizen and if you can prove you are the legal parent of the child or if you have a genetic relationship with your child, technically you don’t need to do the Amparo trial. In this case, the birth certificate will contain your surrogate’s name. Your child will still be eligible for Canadian citizenship and passport, but there are several points to consider.

First of all, you may not be able to leave the surrogate’s name on your child’s birth certificate. This is because having the surrogate’s name on the birth certificate is risky for the surrogate. With her name on it, your surrogate is assuming full parental rights and responsibilities. When the intended parents leave Mexico with their child, the surrogate may be charged with criminal abandonment of her child. For this reason, many surrogates and their lawyers request that their names be removed from the birth certificate via Amparo.

In addition, if the surrogate mother is listed on the birth certificate, she might be considered the legal mother under Canadian law. This is because Canadian provinces generally recognize the person or persons named on the birth certificate as the legal parent(s). Except for Quebec where a second birth certificate with only the intended parents’ name(s) is issued, a second birth certificate is not generally issued in the rest of Canada. If your surrogate is recognized as the legal parent of your child, you may have a difficulty doing things that involve parental consent, such as changing your child’s last name, enrolling your child to a school, or making medical decisions for your child. Consult a family lawyer in Canada before making the decision to leave the surrogate’s name on the birth certificate.