Q: If I’m the intended mother, will I be on my baby’s birth certificate?
A: In short, no. Not without partaking a special court action anyways. Here is a longer answer.
Except for the states of Tabasco and Sinaloa, there is no legal framework for surrogacy. This means that there are no laws that regulate surrogacy in places like Mexico City, Cancun, Puerto Vallarta, and other cities. There are no laws that say legal parents of the babies born through surrogacy must be the intended parents. When a baby is born through surrogacy, the Civil Registry in the city where your baby was born will issue a birth certificate. The birth certificate will list the name of the surrogate mother as the legal mother and the name of the intended father as the legal father. This means that the intended mother will not be on her baby’s birth certificate even if she is genetically related to the child.
While the default birth certificate may not list the intended mother as the legal mother, it is possible to obtain a birth certificate that shows the intended mother as the mother of the child. There was a ruling by the Supreme Court of Mexico in 2021 that touched on surrogacy. It said that the parentage of children born through surrogacy should be determined by the will (the intention) to procreate. In other words, regardless of whether the intended mother is genetically or gestationally related to the child, because she had the intention to have the child, she should be the legal mother of the child.
This ruling allows the intended parents to initiate a court action in the federal court, which is known as Amparo. An Amparo the a court action taken to protect people’s constitutional rights. With the help of a lawyer, intended parents can argue that the child born through surrogacy belongs to them, not the surrogate, because they were the commissioning parents. They can show the judge their surrogacy contract, hospital records, IVF reports, and so on. At the conclusion of Amparo, which may come 1 to 3 months later, the parentage of the intended parents are recognized, their names are placed on the baby’s birth certificate, and the surrogate’s name is removed from it. Now, the intended parents are officially the legal parents of the child.
Amparo is available in any states because it is done through a federal court. However, in various jurisdictions, the length of time it takes might be different. The process might be slightly faster in the state of Jalisco since their state is friendly to surrogacy. Also, since many Amparo trials take place in Mexico City, courts there may be more familiar with surrogacy cases so the process might be faster.
In Sinaloa and Tabasco, where surrogacy is regulated by the state law, it may be possible to get a “pre-birth order” (a favorable sentence from an Amparo trial done before the birth of your child.)
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