Updated: September 7, 2024 regarding Amparo trials
In short, sort of. In most states in Mexico, there is no law regulating surrogacy. What this means is that Mexican laws don’t explicitly support surrogacy or prohibit surrogacy. Surrogacy in Mexico is constitutionally permitted for all individuals, and this is affirmed by the Supreme Court ruling in 2021. However, because there are no legal framework for surrogacy in most Mexican states, I am always hesitant to say that surrogacy is “legal” in Mexico in the same sense that Canada and the US are. In countries where surrogacy is legal and backed by explicit legal framework supporting surrogacy, the intended parents are awarded full parental rights automatically at the time of the child’s birth, given they have followed proper legal procedures in pursuing surrogacy. With exception of two states in Mexico, namely Tabasco and Sinaloa where surrogacy is regulated, this is not the case. The pathway to recognition of parentage is somewhat more onerous in Mexico.
To understand the legality of surrogacy in Mexico, we will take a look at the history of surrogacy in Mexico and the landmark ruling by Supreme Court in 2021.
Brief History of Surrogacy in Mexico
Before 2021
Surrogacy used to be unregulated in Mexico until 1997 when the state of Tabasco introduced the first legislation that legalized surrogacy. This legislation was part of a broader effort to regulate assisted reproduction technologies, making Tabasco one of the few places in the world at that time to have such explicit laws concerning surrogacy. The laws were quite permissive, allowing both national and international intended parents to engage in surrogacy agreements.
Throughout 2000s and early 2010s, surrogacy was booming in many parts of the world. Surrogacy was booming in countries like India, Thailand, and Laos. As these countries experienced influx of international intended parents and abuse of local surrogates by unscrupulous agencies, these countries started to close off surrogacy to foreign nationals. Mexico experienced increasing number of people seeking international surrogacy as former destinations became unavailable one by one.
In 2013, the state of Sinaloa modified its laws to limit surrogacy to married couples with fertility issues. Similarly, in 2016, Tabasco modified its civil code to restrict surrogacy to married heterosexual couples who are Mexican nationals in order to curb the abuse and exploitation of local women by some agencies and intended parents.
Supreme Court Decision of 2021
On June 5th, 2021, the Supreme Court of Mexico (Suprema Corte de Justicia de la Nación) made a judgement that found Tabasco’s restriction of surrogacy to Mexican citizens or married couples was unconstitutional. It stated that everyone, regardless of nationality, sexual orientation, marital status, or presence or absence of infertility should be able to access assisted reproductive technology such as surrogacy. It further legitimized surrogacy by stating that children born out of surrogacy should have the same rights as children born through natural pregnancy, and that parents of these children should be recognized on the basis of procreational will, not genetics.
The judgement left the specific implementation of laws to individual states, but did outline a guideline that individuals, clinics, and agencies should follow when arranging for a surrogacy service. These determinations are made based on the interpretation of the Political Constitution of Mexico Title 1, Chapter 1, Article 4, which mainly deals with human rights surrounding family and health.
- Surrogacy should be made available to all people. It should be available to heterosexuals and LGBTQ+, married and single people, Mexican nationals and foreigners.
- Children born out of surrogacy have the same rights as those born through natural pregnancy.
- Parentage of children born out of surrogacy should be determined by the will to procreate. Parents who had the intent to have the child through surrogacy should be given parentage regardless of genetic linkage to the child.
- Compensation for the surrogate should be fair and transparent. Fair and transparent terms should be included in agreement between intended parents and the surrogate.
- Surrogate must freely consent to surrogacy agreement. A surrogate should fully understand the medical procedures and legal implications of going through surrogacy.
- Agencies may help facilitate a surrogacy arrangement and may derive economic benefit from it.
- The right to identity of children born through surrogacy is important. The parents who commissioned surrogacy should be the legal parents.
The Supreme Court determined that the Article 4 of the Constitution doesn’t specify the modality in which a family is formed. In other words, regardless of how a family is formed, the human rights protections guaranteed by the Article 4 should equally apply to all individuals and their children. The protection extends to foreigners, same-sex couples and singles, people with or without fertility problems and so on.
The implication of this ruling on the status and legality of surrogacy in Mexico is huge. It essentially says that restrictions placed on access to surrogacy in Sinaloa and Tabasco are unconstitutional and discriminatory, and tells other states to make surrogacy available to foreign intended parents. It also explicitly allows compensation made to a surrogate. Because the ruling is made at the highest judicial level based on the Constitution of Mexico, intended parents enjoy very strong legal protection that is unlikely to be overturned in the near future.
Intended parents now have the legal backing of Supreme Court decision to demand recognition of parental rights to their child born via surrogacy. They can use it in an Amparo trial, a court action intended parents make to assert their parentage and remove the surrogate’s name from the birth certificate of their child (More on Amparo later).
What Lack of Legal Framework Means for Intended Parents
In popular surrogacy destinations like Mexico City and Cancun, legal framework for surrogacy doesn’t exist. There is no law that automatically recognizes the intended parents to be the legal parents of the child upon birth. The surrogate mother is assumed to be the child’s legal mother and her name automatically goes onto your child’s birth certificate. If the surrogate is on the child’s birth certificate, the surrogate is given all the parental rights and responsibility to the child. Only the intended father who donated sperms goes onto the birth certificate. His wife or husband is not listed on the birth certificate when the child is born. If you are a female intended parent, your name will not be on the birth certificate. This creates some problems for the surrogate and/or the intended parent(s). For example:
- If the surrogate’s name remains on the birth certificate, she assumes parental rights and responsibilities to the child. If the intended parent leaves the country with their child, the surrogate may be criminally charged with child abandonment. Anecdotally, this has indeed happened in the past.
- The child’s last name in Mexico is a combination of the father’s last name and the mother’s last name. On his/her birth certificate, his/her last name would be your name and your surrogate’s name combined. Depending on which country and province / state you are from, your child’s official last name may contain your surrogate’s last name even after you go back home.
- For some countries, your country’s passport may not be issued to your child if you and/or your partner is not on the birth certificate.
In order to obtain a birth certificate with only your and/or your partner’s name, you will have to initiate a court action. This court action is the Amparo trial. Amparo (or Juicios de Amparo), in general, is a court action in Spanish-speaking world used to protect people’s constitutional rights. As mentioned before, the Supreme Court ruling in 2021 found that the parental affiliation should be determined by procreational will of the commissioning parents and that children have the right to have the correct parents assigned to them.
Civil Registry (Registro Civil) in each jurisdiction is the office that issues official birth certificates. The civil codes and civil registry regulations of most jurisdictions don’t permit intended parents to get a birth certificate that has only their name(s) as the intended parents, without the surrogate’s name. This is where Amparo process can kick in. When you initiate an Amparo trial and present documents showing your procreational will and the lack of procreational will in your surrogate, using documents such as surrogacy agreement, embryo transfer record, and other documents, the court generally grants Amparo by finding the civil codes and civil registry regulations to be unconstitutional. Upon a favorable ruling, the court issues an order to the Civil Registry to register the birth of your child and issue a birth certificate with the intended parents’ name(s) only.
According to my own research into the public record of Amparo trials that mention “surrogacy” (“MATERNIDAD SUBROGADA“) between January 1st, 2023 and August 28th, 2024 and filed in Mexico City and the State of Jalisco, 79% of Amparo trials resulted in successful ruling. Unfavorable rulings were made, for the most part, because the complainants initiated a voluntary jurisdiction; a non-contentious trial in which they wanted the judge to execute their surrogacy agreement between them and their surrogate. Since Mexico City does not have a legal framework for surrogacy, the court refused. Some failed Amparo trials involved intended parents’ attempt to register the baby before it was born. I’ve also found at least one successful Amparo trial in the state of Jalisco in which the intended parent petitioned the court to order the Civil Registry to register the unborn child with the intended parents as the sole legal parents, while the surrogate was in 23rd week of gestation. This suggests that a pre-birth order is possible in Jalisco (and potentially in other jurisdictions).
While most of Amparo trials result in a favorable ruling, the process generally takes between 1 to 2 months. If you face an extraordinary situation such as labor strike, the process may take longer. In addition, because the success of Amparo trial depends on proving your procreational will and the lack of it in your surrogate, it is important to hire an experienced surrogacy lawyer to handle your case, ideally from start of your journey to the end.
Existing State-level Legal Frameworks for Surrogacy
Some states in Mexico have a legal frame that regulates surrogacy. The states of Tabasco and Sinaloa have civil codes that allow for surrogacy. They recognize surrogacy as a legitimate process and regulates how a surrogacy agreement should be drafted and who the legal parents of the child should be. In these states, a pre-birth order is not only possible but more certain to be granted than in other jurisdictions. For example, in the state of Sinaloa, intended parents can get a pre-birth order naming them as the legal parents of the unborn child before an embryo transfer takes place. When the child is born, the intended parents are named as legal parents on their child’s birth certificate without the mention of their surrogate.
As stated before, the civil codes of Tabasco and Sinaloa restrict surrogacy to Mexican citizens with fertility problems. However, because of the Supreme Court decision of 2021, such restrictions were found to be unconstitutional. In the state of Sinaloa, a foreign intended parent can initiate an Amparo trial, which is designed to protect the constitutional rights of individuals, before a planned embryo transfer to obtain a pre-birth order. Every intended parent, regardless of their nationality, sexual orientation, family status, or presence of fertility problems, can present to the residing judge their surrogacy agreement and other documents to prove their procreational will and obtain a pre-birth order. The existing legal framework for surrogacy makes this possible; it is much harder to obtain a pre-birth order in states and cities without any legal framework for surrogacy.
Note that some states specifically ban surrogacy. Surrogacy is prohibited in the states of Coahuila, San Luis Potosí and Querétaro. It is not advisable that you pursue surrogacy in these states.
So, Is Surrogacy Legal in Mexico? Can I Pursue Surrogacy in Mexico with a Peace of Mind?
You are definitely permitted to undertake surrogacy in most parts of Mexico, regardless of your sexual orientation, marital status, or nationality. You can use an anonymous sperm or egg donor, use IVF to create embryos, and pay a surrogate to carry your fetus to term. If you go through an Amparo trial, the birth certificate of your baby can show only your name as the legal parent(s) as the right to identity of a child is guaranteed by Mexican constitution. Many intended parents have taking this route after the Supreme Court decision in 2021 and they are now back home with their babies. So, it is a safe bet that you can, too. You will, however, need the help of a competent lawyer to navigate through the Mexican bureaucracy and court system.
You also have to research thoroughly to see if Mexico is the right surrogacy destination based on your specific situation. Sometimes, your country’s embassy places a restriction on whether you can leave Mexico with your baby. For example, as of April 2024, US embassy requires DNA test to prove the genetic linkage between you and your child before it can issue CRBA. This poses a problem for intended parents using donated sperms and donated eggs as they will not be genetically related to the child. Again, before starting a surrogacy journey, you should do a thorough research based on your specific situation.
If you are planning your surrogacy journey in Mexico, choose an agency that has a strong relationship with reputable surrogacy lawyers. An experienced surrogacy lawyer can ensure that all appropriate steps are taken to document your procreational will so that in the end, you can be recognized as the legal parent(s) of your baby.