Surrogacy in Mexico is governed primarily at a State level as opposed to a comprehensive federal country-wide framework. Consequently, the legal position can vary significantly depending on the State in which the surrogacy arrangement takes place. Some States expressly permit and regulate surrogacy, while others have limited or no specific legislative framework. The practical and legal position continues to depend on the relevant state, the circumstances of the IPs and the procedures available locally.
Surrogacy Arrangements in certain countries abroad have become increasingly popular for intended parents (IPs) over the years due to their relative affordability and relative ease of access to surrogates via commercial arrangements. It is worth bearing in mind that surrogacy is banned in numerous European countries, such as France, Germany, Italy, Spain, Sweden and Switzerland and that there are also restrictions on the process in the UK.
As a result, there are countries that are emerging as so-called “surrogacy destinations” that are cheaper options than countries such as the USA, which is notoriously expensive. This has led to many American couples seeking reproductive assistance south of the border in Mexico. By way of contrast, it has been reported that only a handful of parental orders for children born in Mexico were made in England, making it quite a new destination for English IPs.
In 2021, a significant development occurred when the Mexican Supreme Court ruled that surrogacy was a constitutionally protected medical procedure and banning the practice was interpreted as a violation of the human right to a family and reproductive choice. The decision is widely understood as limiting the ability of state authorities to impose discriminatory restrictions on access to assisted reproduction based on nationality, marital status, sexual orientation or gender, effectively widening access to foreign IPs, same-sex couples, and single applicants.
This article looks at Mexico as a surrogacy destination and the considerations to bear in mind.
Do your due diligence on the legal process and surrogacy agency
It is important from the outset to understand that the surrogacy process can be long and expensive wherever you go. Therefore, even careful due diligence cannot remove every legal, medical or practical risk. However, obtaining independent advice before entering into an arrangement can help IPs understand the risks and make informed decisions in order to give themselves the best chance at a successful outcome.
As stated above, there is no single federal legal framework governing surrogacy throughout Mexico. The legality and regulation of an arrangement may depend on the state in which treatment, pregnancy and birth take place. This matters because, depending on where you are, it can make it more difficult to obtain the legal paperwork and documents you will require to travel and exit the country, as well as obtain the parental order from the English Court on your return. The lack of regulation can also create large variances in the overall experience and journey to parenthood for IPs.
In one case reported by the US media in 2023, an American couple experienced months of legal difficulties in obtaining a passport for their baby born in Mexico. This was due to the surrogate being named as the birth mother on the birth certificate (as the norm). However, the couple had been told by their agency that the names could be amended on the birth certificate relatively easily. This advice was not accurate.
The IPs had relied on this information to make plans for obtaining a passport and only realised this change of name would be more difficult when it was too late. As a result, the father was stranded for months in an Airbnb in Mexico while his wife returned to the US to care for their other two sons. The matter was eventually resolved after the press and other professionals got involved. However, the IPs expressed their regret at having travelled to abroad to complete their family.
In a separate reported case in 2023, the IPs returned to the US to discover their baby was not genetically related to them. They discovered this after undergoing a DNA test. The clinic was reportedly unable to demonstrate the chain of custody of the embryo before transfer resulting in this catastrophic mistake. By way of contrast, there are strict tracking systems in countries like the US, which makes this type of mistake in relation to the embryo transfer much less likely.
It is therefore important to interrogate the advice and information you are given from your fertility agency. Specific questions you may wish to ask local and independent professionals are as follows:
- Where is the surrogate from and where will they spend the duration of the pregnancy? Are they Mexican or possibly from a different country in South America?
- How have the surrogates been screened and selected?
- Is surrogacy legal in the planned place of birth?
- How are LGBTQ+ intended parents treated and will the surrogate be aware that the relationship is same-sex (as it pertains to consent)?
- How will you evidence the surrogate’s consent?
- What local processes need to be followed and how established are they?
- How much experience does your local lawyer have on the ground and what is their understanding of attitudes of local Courts and Judges? Is there a risk of corruption or delay?
Also read: Surrogacy in Ghana: FAQs for parents from England and Wales
Local Independent Legal Advice
It is also critical to double check with a local independent lawyer what they say in relation to process and timescales. For example, you may be reliant on co-operation from officials that may vary from State to State. The legal and regulatory landscape may change. Advice should therefore be checked at the outset and again before treatment, embryo transfer and birth.
A thorough review of the surrogacy contract should also be undertaken by a local lawyer (an English lawyer cannot do this) as there have been reports of vague or ambiguous clauses that may leave the surrogate or IPs vulnerable. It is important to note that the contract may be unenforceable in any event, but if something goes wrong it is important to know what recourse you may have from the outset.
Insurance policies and costs should also be thoroughly checked before entering into any contracts or agreements.
Language Barriers
It is important to consider what language barriers there may between you and the surrogate, the agency, the local authorities and the doctors treating the surrogate. This is especially important regarding obtaining the surrogate’s consent, where clear documentation is crucial. It would be wise to ensure there are English translations or Spanish translations as required if there is a language difference. The Mexican surrogate must understand what they are signing and consenting to and this should be evidenced as much as possible.
Medical Care
Medical standards, regulatory oversight and record-keeping practices may vary between clinics and locations in Mexico and may be different to what the IPs expect or are accustomed to. IPs should therefore investigate the clinic and proposed hospital carefully and in advance, including their regulatory status, experience, safeguarding procedures, insurance arrangements and systems for tracking gametes and embryos.
Departure Plan
IPs will need to budget for accommodation and expenses after the birth and while waiting for the baby’s passport and birth certificate (and any other legal processes to conclude). The route by which the child can lawfully travel to the UK will depend on the child’s nationality and the particular family circumstances. IPs should obtain specialist nationality and immigration advice before treatment and should check current requirements with the relevant UK authorities. They should not assume that a local birth certificate naming them as parents will, by itself, establish British nationality or entitlement to a British passport.
It may therefore be wise to identify the relevant British consular services before travelling and find out where they are physically located as a precaution.
Arrival in the UK and Legal Parenthood
It is essential to understand that compliance with a local process in Mexico does not necessarily determine legal parenthood under English law. In England, the woman who gives birth is treated as the child’s legal mother at birth and therefore the surrogate will remain the legal mother until that is legally changed. This is the same in Mexico.
Intended parents will usually need to apply to the Family Court for a parental order. A parental order permanently reassigns legal parenthood and parental responsibility to the applicant or applicants and provides for the issue of a new birth certificate. As well as emotionally crucial, this step is legally important for the purposes of conferring parental responsibility and providing consent for decisions for your child.
IPs should obtain specialist English legal advice at an early stage about legal parenthood, the parental-order criteria, nationality, immigration and the documentation required to bring the child to the UK. The statutory requirements and applicable time limits should be considered before treatment begins, particularly where the arrangement is international.
Long Term Risks versus Benefits
Concerns have been raised by researchers and campaign groups about the risk of economic pressure, exploitation and inadequate protection for some women participating in surrogacy arrangements in Mexico. These concerns reinforce the importance of understanding how a surrogate was recruited, whether she received genuinely independent legal and medical advice, and whether her consent is informed, continuing and freely given.
It is therefore prudent to find out as much as you can about your surrogate and how they were selected from the outset. For example, will the package you are entering into allow you to meet and form a relationship with the surrogate? This is possible in Mexico in some cases, but different agencies have different approaches so it is best to check to avoid disappointment.
In the future, your child may wish to know where they came from, especially if they are born via egg donation. This is why it is important to choose an agency carefully and look into their ethics on surrogate screening. In this way your child can know how they were brought into the world and whether that was a decision freely made by the surrogate.
Although this article highlights potential risks, many international surrogacy arrangements proceed and have successful outcomes. Careful planning, independent legal advice and the selection of appropriately experienced and reputable professionals can help IPs understand and manage the risks involved. Perhaps one of the best ways of getting reliable information is to speak to other parents who have been through the process in Mexico to see what they learned from their experience.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]