Q: Why is it important to choose an experienced surrogacy lawyer if I’m doing surrogacy in Mexico?
A: It is important to have a strong legal representation from the start of your surrogacy journey in Mexico. In most regions of Mexico, surrogacy law doesn’t exist. There is no legal framework that an intended parent can use to register a baby in their own name only. By default, a birth certificate issued by Civil Registry of a region where your baby is born has the name of the intended father and the surrogate mother. For some intended fathers, this is fine. However, many intended parents want to see their name(s) on their baby’s birth certificate, not the surrogate’s name. There are many reasons why some people want only the name(s) of the intended parent(s) on the birth certificate:
- Intended parents don’t want their surrogate to be recognized as the legal mother of the child. If the surrogate is on the birth certificate, she will be recognized as the legal mother of the child, and with it, comes all parental rights and responsibilities. Many intended parents simply don’t want another person to be recognized as the legal parent.
- Many surrogates don’t want their name to be listed on the birth certificate. Since the child a surrogate helped carry isn’t the surrogate’s child, she may not want to be burdened with being recognized as the child’s legal mother.
- An intended mother is not listed on the birth certificate by default since Civil Registries issue only birth certificates with intended father’s name and surrogate mother’s name. This means the intended mother is not legally recognized as the parent of the child unless she undergoes an Amparo trial.
- Some intended parents need to have their names listed on the child’s birth certificate in order to transmit their citizenship to the baby. This is especially true for American citizens where CRBA is issued only if at least one of the parents is an American citizen.
- Because a surrogate woman receives compensation from intended parents, if she is the legal mother of the child and allows the child to be taken out of the country, she may be charged with child trafficking. She can eliminate this risk by making sure she is not on the birth certificate.
In order to get a birth certificate from the Civil Registry that list only the name(s) of intended parent(s), a court action is needed. This is the Amparo trial in which intended parents sue the Civil Registry for their refusal to issue a birth certificate only in their name(s). Amparo trials are generally successful, but you need an experienced surrogacy lawyer to present your case. Your surrogacy lawyer must show the court that you, not your surrogate, have the procreational will, which is the basis of recognizing you as the legal parent of the child. Your surrogacy lawyer must choose the appropriate strategy to prove this point.
If you know you will need a birth certificate in your name(s) only, you should hire a surrogacy lawyer to represent you from the beginning of your surrogacy journey. Just because you signed up with a surrogacy agency doesn’t mean you can adequately prove your procreational will. An experienced surrogacy lawyer can use a variety of methods to make sure you can be recognized as the legal parent, including:
- Help draft a surrogacy agreement between you and your surrogate in a timely manner. A surrogacy agreement outlines the rights and responsibilities of intended parents and surrogate. It also outlines a compensation schedule. A surrogacy agreement should be drafted and signed before an embryo transfer takes place.
- Help prepare documents that show your surrogate understands that she is not the mother of the child, that she does not have the procreational will.
- Help intended parents file a petition to the court for a pre-birth order, where pre-birth order is possible.
- Help you register the baby after birth or guide you what to do after the birth of your child.
- Help you initiate an Amparo trial to obtain a birth certificate in your name(s) only.
It is important to prepare the right documents and retain the right records such as embryo transfer reports from the beginning. Such documents can become necessary during Amparo trial. Even if you are not doing the Amparo trial, you may need a properly executed surrogacy agreement and other documents when you apply for your baby’s passport. Thus, it is highly recommended that you have a legal representation from the beginning of your surrogacy journey in Mexico.