Ask the Surrogacy Experts

“I’m confused because your website says surrogacy in Mexico is prohibited because Tabasco was the only state previously allowing it. However other sites say that it’s the opposite, and that now it’s legal everywhere in Mexico EXCEPT in Tabasco. Is surrogacy possible in Mexico or not?”
— Alun

 

Good morning Alun,

It’s important to note the difference between surrogacy being “legal” and surrogacy being “not illegal” in Mexico. Like the US, surrogacy is regulated at the state level, and Tabasco is the only Mexican state with a law on the topic. So surrogacy is technically only illegal in the State of Tabasco. But the lack of any law does not mean that surrogacy is legal. Without a legal framework, your surrogacy agreement would be unenforceable, there would be no protection if the surrogate changed her mind, and there is no assurance that the practice will not be outlawed at any moment.

The programs you mentioned are examples of “unregulated surrogacy”, and they carry serious risks. An unregulated surrogacy program is just a private agreement between the Intended Parents and the surrogate. If there is any dispute, the contract has no legal weight and the surrogate mother is left with almost full parental rights, while intended parents may be left in the cold.

Mexico is not the only destination offering unregulated programs. Kenya, Cyprus, Guatemala, and many others will pop up if you run a Google search for “cheap surrogacy”. These unregulated surrogacy programs are a risky for three reasons…

There is no legal protection for the parents if the surrogate should choose to change her mind and request custody of the baby. Almost all international exit processes require that the surrogate give consent for the baby to leave the country, and your Mexican surrogate may decide not to give this consent (this is especially concerning with surrogacy for gay couples in conservative or religious countries). If this happens the parents have little recourse. Any dispute of the child’s custody will be resolved in local Family Court, where laws invariably support the rights of the birth mother over foreign couples.

Many countries would consider the act of taking money in exchange for the parental rights of a child to be a form of Human Trafficking. Although the surrogacy procedure may not be explicitly regulated, there may be provisions of the surrogacy agreement that are prohibited (and have stiff penalties).

The lack of any legislation opens the possibility of future legislation. This is what we experienced in Southeast Asia, when a sudden media firestorm erupted over a case of Australian parents who left one of their twin babies in the custody of their surrogate. The public attention was so quick and furious that the local government moved quickly and banned surrogacy within weeks. All couples who were pregnant or had invested in their surrogacy programs were left in the lurch. Many lost thousands of dollars, while many others were left in legal limbo for months while the various governments negotiated a way for the biological children of Intended Parents to return home. (Other families took more drastic and expensive action to bring their babies home.)

There’s a full discussion of surrogacy in Mexico, including the risks and some creative options, in the Surrogacy Guide.

A recent option in Mexico has circumvented the risk of “unregulated” surrogacy in Mexico by providing a Court Order 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.

The downside of the Court Order process is that it can add 3 months or more to the surrogacy journey, and there are significant legal costs added to the total budget. With the Court Order, surrogacy in Mexico will cost about $85,000 USD for a guaranteed program.

All that said, there are also unregulated programs in developing countries like Kenya for about 30% the cost of programs in North America. That makes these programs an attractive risk for parents with little financial resources. But my advice is always to pursue surrogacy in a destination with a solid legal framework — if not, then you may be inviting trouble.

I hope this helps.
— Bill

 

About the authors

  • William (Bill) Houghton
  • Author: William (Bill) 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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