Is Surrogacy in Developing Countries Secure?

“I’m confused because I’ve always hear that surrogacy in Mexico was either illegal or unregulated. Other sites say Mexico is only legal in Mexico City, or that you can only get a birth certificate in Mexico City. Is surrogacy possible in Mexico or not?”
— Alun

Good morning Alun,

First of all, I have spent the last several years telling people that surrogacy in Mexico was risky because it’s “unregulated”. But that changed completely in 2021 with a decision by the Mexican Supreme Court. Essentially what the court did was overturn a previous ban on surrogacy by the state of Tabasco. The Court’s decision legalized commercial surrogacy for all individuals across Mexico.

The Supreme Court also ruled that it’s up to the individual states to regulate surrogacy. While the states can not ban surrogacy completely, they still have the obligation to regulate the practice and decide how they were going to make surrogacy accessible and secure to everyone. In states that are very surrogacy friendly, the process is very straightforward and very supportive of the intended parents while offering a lot of protections to the surrogate. In other states the regulations could be very strict and onerous.

That’s why surrogacy in Mexico City has a much different proposition than in other areas. Mexico City now has a legal framework that’s quite similar to the US state of California. With a properly executed surrogacy contract, intended parents can apply for a “pre-birth parentage order” and have your name inscribed on the baby’s original birth certificate. In most of Mexico the surrogate’s name will be placed on the birth certificate until you complete an adoption or similar legal process.

There’s a full discussion of surrogacy in Mexico, including the full description of the new legal framework, in the Surrogacy Guide.

Aside from Mexico, the popularity of surrogacy in unregulated destinations is a real problem. I still advise intended parents away from unregulated destinations.

In many countries, surrogacy programs pop-up because there are no legal restrictions and fewer barriers to entry for an opportunistic surrogacy agency. In these countries, surrogacy is technically “not illegal”. But there’s a difference between surrogacy being “legal” and surrogacy being “not illegal” in developing countries.. 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 in Kenya, Cyprus, Nigeria, Czech Republic and others are examples of unregulated surrogacy, and they carry serious risks. In a jurisdiction without an explicit legal framework, a 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.

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 a 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 days. 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.)

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