Surrogacy in Mexico

Surrogacy in Mexico became uncertain when the laws changed in 2016. But a 2021 Supreme Court ruling reopened the possibility for legal commercial surrogacy in the coming year. The court upheld commercial surrogacy for married, single, gay, straight and foreign Intended Parents.

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Update: Legal Status of Surrogacy in Mexico

The days of legal and secure surrogacy within Mexico ended in 2016, but they may soon return in some Mexican states. A June 2021 Supreme Court decision upheld surrogacy in Mexico. In a significant decision, the court endorsed both free and paid surrogacy and even invalidated one state’s provisions that prohibited access to same-sex and foreign couples.

In Mexico, only two states, Tabasco and Sinaloa, have surrogacy regulation. Three other states, Coahuila, San Luis Potosí and Querétaro banned surrogacy completely. The rest have no specific legislation. The new ruling opens the door for all Mexican states to legislate as they see fit, including allowing commercial surrogacy for any Intended Parent. It now falls to the individual states to legalize and regulate surrogacy in Mexico.

For the moment, surrogacy in Mexico is still unregulated for international couples, but that may change as the implications of the court ruling trickle down to the various state legislatures.
 

Creative Alternatives for Mexican Surrogacy

While Mexico waits for the implications of the new Supreme Court ruling, some creative options still enable surrogacy in Mexico. Three basic options are now available.

The most common Mexican surrogacy options offer local surrogate mothers with American visas. These programs promise to bring the surrogate to the United States during her third trimester for a delivery in Texas or Southern California. While that option is the most common, it also the least secure. We generally advise couples to avoid such programs.

Other more favorable options include “cross-border” options using Mexican clinics and American surrogate mothers. This “cross-border” option is a more secure because the surrogate is an American citizen giving birth in the United States, but the cost savings is minimal.

A new opportunity also uses the Mexican courts to obtain a “pre-birth parental decree” to ensure the legal rights of the Intended Parents. This approach offers some advantages, but also adds cost and time to the typical Mexican surrogacy program.

Details of both these recent options are below.
 

Just like in the US, individual Mexican states are obliged to regulate Surrogacy in that country. There is no current federal law regarding surrogacy, and only 2 of the 31 Mexican states have surrogacy regulations. But the lack of a prohibition is not the same as legalization.

For years, Tabasco was the only Mexican state with explicit laws that supported surrogacy. This made Tabasco the only state where surrogacy in Mexico was legal. That changed in January 2016 when commercial surrogacy was banned in Tobasco for international couples.

While Tabasco banned Surrogacy for foreigners, other Mexican states still have no surrogacy laws. As a result, “unregulated surrogacy” programs are still offered. Mexico City and Cancun are the most common destinations for these programs.

Unregulated surrogacy programs have unique risks that all Intended Parents should understand. Here’s what you should know about unregulated surrogacy in Mexico.

Surrogacy in Mexico

  • An unregulated surrogacy program is just a private agreement between the Intended Parents and the surrogate. The contract has no legal weight and can’t be enforced.
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  • There is no legal protection for the parents if the surrogate should choose to change her mind and request custody of the baby. Any dispute of the child’s custody will be resolved in local Family Court, where laws invariably support the rights of the birth mother.
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  • The lack of any legal framework opens the possibility of “regulation at whim” of the local authorities. This happened several times in other countries where, in the absence of a legal framework, a conservative administration proclaimed without warning that surrogacy would be treated as a form of Human Trafficking. The result was swift, unexpected and severe actions by the local police against both parents and surrogates.

For more info on the risks of unregulated surrogacy programs, visit this article in the Surrogacy Guide.
 

A Solution to “Unregulated” Surrogacy in Mexico…

A new option in Mexico circumvents the risk of “unregulated” surrogacy in Mexico by providing a court decree upholding the terms of the surrogacy contract before the surrogate is even pregnant. The court order is the equivalent of a “pre-birth order” granted in some U.S. States, and instructing the birth certificate to be issued with the names of the Intended Parents. This is a unique option that is being performed by a few, larger agencies.

To ensure there are no obstacles to a safe return home with the baby, the court decree is obtained before any embryo transfer if performed. The order ensures the Intended Parents’ names are inscribed on the birth certificate and that the surrogate mother has no parental rights or possible claim on the baby. Essentially, the court order takes the place of legislation, and enforces the terms of the surrogacy contract. The downside of the Court Order process is that it adds significant time and legal costs added to the journey.

The SENSIBLE agency has taken a strong stance against unregulated surrogacy programs in countries like Kenya, Cyprus or Mexico. But the addition of a court order mitigates the risks and makes the process more secure.

 

What is a Cross-Border surrogacy program?

Some surrogacy agencies in the United States offer “cross-border” programs with clinics in Mexico. Cross-Border surrogacy uses a foreign clinic to perform the IVF and conceive the parents’ embryos, but they transfer the embryos to an American surrogate mother. The entire pregnancy and delivery then takes place in the United States under the jurisdiction of friendly American laws. The benefit is a somewhat lower cost of clinic procedures in Mexico with the full protections of the United States legal framework.

Surrogacy in MexicoMexico is the most common destination for medical tourism for American citizens, and that is no different for fertility tourism. There are about 1 million married women in the USA who are infertile. A basic IVF procedure in an American clinic can cost up to $25,000, which is too great an investment for most families. But the same treatment is a third that price in Mexico. Using Mexican clinics can pass that savings on to the total cost of US surrogacy programs. Even so, the pregnancy rates at typical Mexican IVF clinics is significantly lower than in the United States.

Read more about the legal framework for surrogacy in the United States.
 

The US and Mexico Option

The U.S. is the international gold standard for fertility treatments, including surrogacy. Unlike surrogacy in Mexico, many U.S. states have explicit laws supporting surrogacy contracts. Birth certificates issued under surrogacy agreements can include the name of the Future Parents as the legal mother and father.

Laws in several U.S. states also permit commercial services that support surrogates and Future Parents. Children born via surrogacy agreements in the United States are eligible for immediate US citizenship and passports.

Traditional surrogacy programs in the United States cost more than $150,000 USD, but through partnerships with IVF clinics in Mexico, cross-border programs start around $100,000 USD. Local Mexican egg donors are also more affordable, costing about $5,000 USD as compared to $18,000 for a donor from the United States.

Under the new programs, the Mexico surrogacy clinics perform all medical procedures, including egg donation, endometrial stimulation, and ICSI/IVF. After the healthy embryos are conceived the surrogate travels to Mexico to receive the embryo transfer. The surrogate mother is an American resident and citizen, and her complete prenatal care and delivery takes place in the United States under the jurisdiction of a surrogacy-friendly US state.
 

About the authors

  • Author: William Houghton

    Bill Houghton is the founder of Sensible Surrogacy, author of the Sensible Surrogacy Guide, 2x surrogacy dad, and a dedicated advocate for secure, legal and ethical Gestational Surrogacy. Read Bill's Biography

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