Updated July 30th, 2024: Exit process involving Mexican passport
If you have welcomed your surrogacy baby in Mexico, you have every reason to be ecstatic. However, the battle isn’t over, yet! Now, you have to think about how to get your child back to your country. In order for your baby to get back home, he or she needs a passport, which is a travel document issued by the country that he or she is a resident of. In general, there are 3 ways that you can do this.
1. Get your child a passport from your country
A more common approach taken is to get your child a passport from your country. If you are the citizen of your country, the first step is to pass your citizenship to your child. This is called citizenship by descent and most countries allow parents to pass on their citizenship to their child. However, the specific rules governing this principle are different in each country, so please read the country-specific exit process guides I have prepared:
Guide to the Exit Process for Canadian Intended Parents
Guide to the Exit Process for American Intended Parents
For example, if you are an American citizen, you can pass your citizenship to your child if one of the following requirements are met:
- A male US citizen is the father of the child and is genetically related to the child.
- A female US citizen is the legal mother (emphasis added – the female parent must be on the child’s birth certificate) and is genetically or gestationally related to the child.
- A US citizen is not genetically or gestationally related to the child but is married to a parent who is genetically or gestationally related to the child.
The exit guide above analyzes these requirements in detail, so please read it over if you are an American citizen. Before you embark on a surrogacy journey in Mexico, understand the exit process pertaining to your home country and your specific situation.
In some cases, you need to sue the Civil Registry to obtain your child’s birth certificate with your name(s) in order to show that you and/or your partner are the legal parents of the child. Civil Registry in Mexico issues only birth certificates that list the intended father as the legal father and the surrogate mother as the legal mother. If your country requires that you and your partner are legal mother and father of the child, you may need to prove this by presenting an a birth certificate showing your and your partner’s names.
In Mexico, you can have obtain a birth certificate with only your name(s) on it by way of a constitutional challenge in the federal court. This is known as the Amparo process. When the Civil Registry refuses to issue you a birth certificate with only the intended parent(s)’ name(s), you sue them in an Amparo trial. You will have to hire a lawyer who is experienced in surrogacy cases, go to the court with your surrogacy contract, embryo transfer report(s), certificate of live birth from your hospital, and other documents as necessary, and tell the judge that you and/or your partner should be the legal parents. This argument is supported by the 2021 Supreme Court ruling which stated, in part, that the legal parents of babies born through surrogacy should be intended parents who have the procreational will. In other words, if you can prove that you commissioned the birth of your child, not the surrogate, the court will order the Civil Registry to issue you a birth certificate of your child that has only your name(s) without your surrogate’s name. Amparo is generally successful if argued by a competent lawyer, and it may take anywhere between 1 and 3 months. Most cases take around 1 month before you can get issued a provisional birth certificate that you can use for the purpose of obtaining a passport for your child. Intended parents have to stay in Mexico during this period of time.
After your child gets the citizenship, it’s easy to get the passport from your country of origin. Often, you just apply for your child’s citizenship and passport at the same time in the same embassy.
2. Get your child a Mexican passport
Mexico recognizes “jus soli” (right of the soil), which means that a child born on Mexican soil can be a Mexican citizen regardless of the citizenship of his/her parents. Your child born through surrogacy in Mexico can acquire a Mexican citizenship and passport if you chooses this path. Intended parents who have difficulty issuing passport for their baby from their own country typically chooses this path. For example, if you are an intended parent whose home country does not recognize surrogacy and / or does not allow your citizenship to be transmitted to your child, your only option to bring your baby back home might be to get your child a Mexican passport and apply for a visa afterwards. Another situation is if you are a permanent non-citizen resident of a country; then, you will need your child to have a Mexican passport in order to apply a visitor visa for the child.
The following steps are needed for you to apply for a Mexican passport for your child.
- Complete an Amparo trial and obtain a final sentence from the trial. Obtain a birth certificate that contain only the intended parents’ names.
- Go through the verification process and interview with the Secretariat of Foreign Affairs (Secretaría de Relaciones Exteriores or SRE).
- After the verification process, SRE will issue a Mexican passport for your child.
- You can now apply for a visa for your child in order to bring the child to the country of your residence. Note, the length of time needed varies with each country.
It is not advisable that you follow this route if you can pass your citizenship to your child and obtain a passport from the country of your origin. The process is complex, and some intended parents have reported uncertainty in the timeline and the outcome. The length of time needed may be around 1 to 2 months.
Can I go back to my country with my baby with a Mexican passport?
The answer to this question depends on which country you are going back to. In general, if your country doesn’t require Mexicans to have a visa, then, it is relatively quick and easy. However, if your country require a Mexican to get a visa to enter the country, you will have to apply for a visa for your child. For example, 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. Similarly, the US also requires a visa from visiting Mexicans.
3. Get your child to the country you are permanently residing in
If you reside in a country where you are not a citizen of that country, yet, you might be able to get a visitor visa for your child. In some cases, you won’t even require a visa to bring your child to the country you reside. An example is if you are the Green Card holder (LPR, or Lawful Permanent Resident) in the United States. If you are a female (not male) intended parent who is a Green Card holder, you can bring your child back to the United States if you pass the following 3 conditions:
- Your child was born during the LPR mother’s temporary visit abroad,
- Your child’s admission to the US is within 2 years of birth, and
- The accompanying LPR mother or father is making their first entry to the US since the child’s birth.
For details of this path, read the Guide to the Exit Process for American Intended Parents.
In other cases, you may have to sponsor your child in order to get him or her a visa to enter the country you are residing in. For example, if you are a permanent resident of Canada who is not married to a Canadian citizen, your child will not automatically become a permanent resident of Canada. You will have to either sponsor your child as a dependent under the family class in order to come back to Canada. Note that the application process may take 12 months or more, making this impractical for most people.
Should I remove the surrogate’s name from the birth certificate?
As stated above, it is possible to obtain a birth certificate with only your and/or your partner’s names on it. This is through a court action, which may take a couple of months after the birth of your child. So, many intended parents wonder whether it is necessary to do the Amparo process and whether there are disadvantages in leaving the surrogate’s name on the birth certificate. Here are some things you need to consider:
- Many surrogates and their lawyers require you to remove the surrogate’s name from the birth certificate. Many surrogates do not want to be the legal parents of the baby because being a legal parent means there are legal parental responsibilities associated with it.
- In the past, some surrogates have been charged with child abandonment when the intended parents went back home with their baby.
- The last name of the baby in Mexico typically consists of the combination of the last name of the father and the last name of the mother. If the birth certificate lists the intended father and the surrogate mother, the baby might have a last name that includes the surrogate’s last name. If a second birth certificate is not issued in your home country, the legal last name of your baby might have both the father’s last name and the surrogate’s last name connected by a hyphen (e.g. Zhang-García). Whether you can get a second birth certificate for your child and whether you can change the legal last name of your child depends on which province or state you reside in. Consult a family lawyer in your jurisdiction.
- Because the original birth certificate is often used as a proof of legal parentage in many countries, in your home country, the surrogate may still be recognized as the legal mother. This may have unintended consequences when you are trying to do things for you child that requires parental consent from both parents. An example is enrolling your child to school, changing your child’s last name, etc.
- If your partner’s name is not on the birth certificate, your partner may not be recognized as the legal parent of the child in your home country. Then, your partner might have to do a second-parent adoption when you go back to your country.