Surrogacy in Mexico Continues with Creative Options
Surrogacy in Mexico continues to be possible for many couples, although the options have changed dramatically since the laws changed in 2016. The new options range from creative solutions to navigate the lack of regulation, to downright dangerous programs to be avoided.
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The days of legal and secure surrogacy within Mexico may have passed, but some creative options have emerged. 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 (especially given the policies of the current US administration). We generally advise couples to avoid such programs.
Other more favorable options include “cross-border” options using Mexican clinics and American surrogate mothers. This is a more secure option because the surrogate is an American citizen giving birth in the United States, but the cost savings is minimal.
There is also a new opportunity using the Mexican courts to obtain a “pre-birth parental decree” to ensure the legal rights of the Intended Parents. This new approach offers some advantages, but also adds cost and time to the typical Mexican surrogacy program.
Details of both these recent options are below.
Is Surrogacy in Mexico Legal?
Surrogacy in Mexico has been and still is regulated by individual states — just like in the United States. There is no current federal law banning surrogacy, and it has only been legislated in 2 of the 31 Mexican states. 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 surrogacy was banned in that state.
While Tabasco state has now banned Surrogacy for foreigners, most Mexican states still have no surrogacy laws. As a result, “unregulated surrogacy” programs continue to be 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.
- 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.
- 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.
- The lack of any legal framework opens the possibility of “regulation at whim” of the local authorities. This has happened several times in other countries where, in the absence of a legal framework, a conservative administration proclaimed overnight (literally) 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 has circumvented the risk of “unregulated” surrogacy in Mexico by promising 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 we’re only aware of 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 often adds 4 months or more to the surrogacy journey, and there are significant legal costs added to the total budget.
In January 2016 the only Mexican state with explicit legislation on surrogacy changed course and banned the practice — making it legal only for married Mexican citizens and residents. There are significant risks of unregulated surrogacy programs, and Sensible Surrogacy has taken a strong stance against programs like this in countries like Kenya, Guatemala or Mexico. But the addition of a court order appears to mitigate the risks and make 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.
Mexico 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.
The “cross-border” programs adhere to new restrictions on surrogacy in Mexico, provide the security of U.S. surrogacy laws, while somewhat reducing the total cost. (Cross border programs with Mexican clinics still cost about $10,000 USD, most of which is compensation and travel expenses to the American surrogate mother.)
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 have cost more than $150,000 USD, but through partnerships with IVF clinics in Mexico, cross-border programs start at around $100,000 USD. Local Mexican egg donors are also more affordable, costing about $4,500 USD as compared to $18,000 for a donor from the United States.
Under the new programs, clinical procedures including egg donation, endometrial stimulation, and ICSI/IVF are performed at the Mexico clinic, which specializes in surrogacy in Mexico. 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 take place in the United States under the jurisdiction of a surrogacy-friendly US state.
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