Mexico

Surrogacy Insights

Surrogacy in Mexico has developed primarily by the judicial branch through a series of groundbreaking decisions. There are no federal laws directly governing surrogacy practices in Mexico. Instead, surrogacy is regulated at the state level, similar to the U.S. system. To understand the intricacies of surrogacy legislation in Mexico, it may be helpful to first explain the interplay between federal laws, state regulations, and legal precedents.

Mexico’s States

Mexico is composed of 32 federal entities, which include 31 states and one federal district. Each state operates under its own government and is further subdivided into municipalities. The federal district, known as Ciudad de México (CDMX), or Mexico City, serves as the capital of Mexico and operates independently from any state with its own government and administration.

Among the Mexican states, two, namely Tabasco and Sinaloa, have specific regulations regarding surrogacy. Conversely, three states, Queretaro, Coahuila, and San Luis Potosi, explicitly do not recognize surrogacy agreements. The remaining 27 states currently lack written regulations addressing surrogacy. Efforts are underway to update these state laws to align with the 2021 Supreme Court ruling on surrogacy.

Steps that led to the 2021 Mexico Supreme Court Ruling

1997:

Tabasco updated its State Civil Code to permit the registration of children born from surrogacy arrangements, mandating that all involved parties submit a birth certificate and a notarized copy of the surrogacy agreement to the civil registry. Nonetheless, the regulations fell short in safeguarding surrogates, defining eligibility criteria for participants, or clarifying the legal status of surrogacy within the region.

2015:

The Mexican Supreme Court of Justice of the Nation, the highest court in the country, declared state prohibitions on same-sex marriage unconstitutional, thereby granting legal recognition to same-sex unions nationwide. This groundbreaking ruling not only legalized same-sex marriage but also opened avenues for broader legal acknowledgment and safeguarding of LGBT families, including their rights to adopt children and pursue surrogacy.

2016:

India, which has long been a primary destination for surrogacy, tightened its laws to impose substantial restrictions on foreigners and same-sex couples, similar measures were adopted by Thailand in 2014. Consequently, there was a surge in surrogacy cases in Mexico. In reaction to this trend, the governor of Tabasco signed a bill on January 16th, 2016:

Prohibiting foreign couples from engaging in surrogacy (Article 380 Bis5)
- This measure discriminates against foreigners, including permanent or temporary residents in Mexico, as well as individuals in formal or informal partnerships with Mexican citizens.
Made reference to requiring the involvement of a commissioning mother and father (Article 380 Bis 1)
- This definition is discriminatory based on gender and marital status, excluding single individuals and same-sex couples from accessing surrogacy agreements. Such limitations contravene Article 1 of the constitution and a resolution issued by the Supreme Court on January 27th, 2017, regarding family life between same-sex persons, as well as various international conventions to which Mexico is a signatory.
Had a provision that the surrogate and her partner must sign the surrogacy agreement.
- This violates a woman’s right to reproductive freedom by making her have to obtain the authorization of her partner.
Invalidates the contract if any agency, firm, or third party was involved in the process (Article 380 Bis 4 fraction iv)
Introduced positive changes, such as the obligation for the state’s Civil Registry and Health Ministry to register both surrogacy agreements and births. (Article 380 Bis 2A)

Attorney General’s Office

The Attorney General’s Office (PRG) filed a lawsuit with the Supreme Court of Mexico on February 15th, 2016, contending that the new law was unconstitutional.

The Supreme Court of Mexico 2021 Decision

In 2021, the Mexican Supreme Court, in Amparo Directo en Revisión 243/2020, delivered a landmark verdict with a 9-2 majority in support of surrogacy. The Court reiterated that Article 4 of the Constitution mandates the enactment of laws to protect the institution of family, emphasizing every individual’s entitlement to a family and the freedom to form one, as well as the right to an identity, whereby the State is obligated to issue certified birth certificates or registration of birth without charge. The Justices extended their stance, highlighting that a ban on surrogacy could foster secrecy, posing heightened risks for pregnant women and causing uncertainty for unborn children. They urged each State to establish safeguards for surrogates and unborn children, along with regulations ensuring that clinics and agencies adhere to principles of human rights.

The Supreme Court’s main rulings were:

Surrogacy is recognized as a legitimate form of assisted reproduction: The Court affirmed that the right to have a family and a child’s right to a family are fundamental human rights. Access to available medical technologies for family formation must be provided impartially to all individuals. IVF and gestational surrogacy are considered medical procedures protected by law and cannot be outlawed by individual states.

Access to surrogacy cannot be denied based on nationality: It is unconstitutional to prohibit foreigners from accessing surrogacy services.
Access to surrogacy cannot be denied based on sexual orientation: All individuals, regardless of sexual orientation, have the right to access assisted reproduction technology. For some individuals, such as gay or single men, surrogacy may be the only means of biologically having a child.
Access to surrogacy cannot be denied based on marital status: Single individuals have the right to pursue surrogacy to create a family.
The legal parents of a surrogate child are the intended parents: The Court established that the intention to start a family, rather than biological or genetic connection, determines legal parentage. (a) Therefore, intended parents should clearly express their “procreational will” in the legal contract. (b) Some countries (such as the USA, Canada, UK) require a genetic link between at least one parent and the child, before issuing a passport to that child. Therefore, it is highly recommended that at least one party has a genetic connection to the child. (c) To safeguard the parental rights of the intended parents and prevent any potential claims of parental rights by the surrogate, the surrogate should have no biological connection to the child.
The requirement for a surrogate’s partner consent is invalid: The Court deemed this requirement as perpetuating gender stereotypes and infringing on a woman’s reproductive autonomy.
Both altruistic and compensated surrogacy arrangements are permissible: The Court clarified that offering economic compensation to a surrogate should not be equated with the sale of a child but rather as payment for a pregnancy service.
Contract signing before a notary public is a valid requirement: This ensures clarity and certainty for all parties involved in the surrogacy process.
Intermediary agencies can receive financial compensation: Specialized agencies can facilitate surrogacy arrangements and receive payment for their services. However, the Justices encouraged the states to enact regulations ensuring that agencies and clinics operate in a manner that upholds the human rights and dignity of all parties involved.

Who has access to Surrogacy in Mexico?

The 2021 Supreme Court ruling confirmed that the opportunity to create a family in Mexico is open to all individuals, including:

Same-sex couples
Single men
Single women
Unmarried heterosexual couples

Clarity on the status of Surrogacy in Mexico

The recent ruling by the Supreme Court of Mexico holds significance beyond the confines of Tabasco, potentially shaping surrogacy regulations throughout the country. This decision marks a pivotal step toward acknowledging surrogacy as a viable solution for individuals and couples grappling with fertility issues. However, the true impact of the Supreme Court’s decree on state legislation hinges on interpretations by lower courts and the complexities of legal procedures.

Under the Mexican Constitution, federal laws take precedence over state laws in matters of exclusive federal jurisdiction. In areas where both federal and state governments share jurisdiction, such as family or civil law, state laws may complement federal statutes but cannot contravene them. Conflicts between federal and state laws are typically resolved in favor of federal legislation, provided it falls within the purview of the federal government’s authority.

In theory, the Supreme Court’s decision should result in the overturning of surrogacy bans in states such as Veracruz. However, the actual impact hinges on subsequent legal procedures and judicial interpretations. While several states are considering legislative changes, progress is gradual, and not all states have embraced the Court’s guidance yet.

Warning

It is important to note that despite the legality of surrogacy for foreigners in most Mexican states, there is no guarantee that every court will enforce surrogacy agreements.

In the interim, the prohibition on surrogacy in Tabasco has been lifted following the Supreme Court’s ruling, enabling surrogacy arrangements within the state. Tabasco, Sinaloa, and Mexico City have established processes supportive of surrogacy.

Finalizing Parental Rights

It is customary for the names of both the biological intended father and the surrogate to be listed on the original birth certificate. There are 2 types of birth certificates: (a) The certificate given to the surrogate in the hospital after the baby’s birth – Certificado de alumbramiento, or nacido vivo. (Commonly referred to as the Mexican Birth Certificate), and (b) Certified birth certificate issued by the Civil Registry. (Commonly referred to as the Mexican Secretary of Health Birth Certificate).
The biological father will need to undergo DNA testing to verify his genetic connection to the child.
The surrogate then signs a document granting parental rights to the father and providing permission for the child to leave Mexico.
For intended parents from the USA, the procedure entails a visit to the local US Consulate, where they must present evidence of one parent’s citizenship, at least four years of prior residency in the US, a DNA test from an accredited laboratory, the birth certificates, and the surrogacy agreement. The consulate will then issue a Consular Report of Birth Abroad (CRBA) for the new American citizen born overseas and process the passport application, which typically takes 3-6 weeks.
Australian and Canadian citizens follow a similar process, although it may take 6-8 weeks for completion.
In certain locations, it may be possible to obtain a pre-birth order from the courts. While this process may delay departure from Mexico and is not guaranteed, obtaining a pre-birth order can streamline procedures after the child’s birth.

Future Legal Developments

June 19, 2023

US Embassy and Consulate in Mexico posting (Read more here)

The child’s citizenship might be straightforward, but citizenship does not confer custody. Custody and parental rights are subject to Mexican law. Mexican surrogacy law is incomplete and open to wide interpretation.

Be wary of agencies/clinics that guarantee the legality of surrogacy in Mexico or fail to explain the risks. Clinics that offer “VIP” packages such as expedited embassy/consulate appointments, tailored delivery dates, or birth documents that omit the gestational mother are often operating outside the boundaries of Mexican law. Ensure you understand Mexican law, which recognizes the gestational mother as the child’s legal parent with full parental rights and mandates that the gestational mother be listed on the Mexican state-issued birth certificate. Be aware that individuals who attempt to circumvent local law risk criminal prosecution.