1. Can a surrogacy journey be carried out in Mexico?

Yes, while not federally regulated, it is legal and considered a human right under constitutional protections.

2. Is the surrogacy regulated in Mexico?

There is no Federal legislation. Regarding the states, surrogacy is only regulated in Tabasco and Sinaloa, while in the rest of the states, there is no legislation about it. However, surrogacy is permitted in the country since it’s considered a human right, and that’s the reason why a person or couple can do this human reproduction technique in any state through an amparo trial. It’s important to remember there are states with courts more familiar with surrogacy cases, like Jalisco and Mexico City, and this facilitates judgments faster and with more certainty.

3. Why is it said that surrogacy is permitted in México if there is no legislation?

As in other legal systems, in Mexico, a principle establishes that everything that is not forbidden is permitted. According to that principle, and since there are no prohibitions in the Political Constitution of Mexico for making a surrogacy journey, everyone can access this human reproduction technique. Access to surrogacy is considered a human right for people who cannot form their families naturally because of infertility or impossibility in the case of same-sex couples and single parents. This has been established in several rulings of the Supreme Court of Justice of the Nation, which is considered the maximum court of the country, and the rest of the courts have to obey it.

4. Since there are no regulations, what are the legal parameters used for doing a surrogacy process in the states where it’s not regulated?

Most of the procedures around the country are carried out according to the most important rulings of the Supreme Court of Justice through an amparo trial. The Supreme Court of Justice has determined many aspects that must be considered in a surrogacy journey. For example, who can access this technique, how the consent has to be expressed, when an adoption process is needed, which is the principle according to the intended parents get the parenthood between others.

5. Can the rulings of the Supreme Court of Justice change?

Yes, they can, but that is so unlikely, since in the Constitution of the country, it’s established all the human rights that have been recognized can’t be denied by the Mexican government. However, any changes in the law only apply to cases that start after those changes; meanwhile, cases that started before the changes are governed by the current laws at the moment when the surrogacy agreement was signed.

6. Is the genetic link with the baby indispensable to be the intended parents declared as the legal parents on the Mexican birth certificate?

It’s unnecessary since, in Mexico, a principle establishes that the desire to become a parent is a determining factor of parenthood. That principle is called “Procreational will,” and with it, any person in the country can become a parent without needing a genetic link.

7. Can the surrogate provide genetic material?

Yes, she can, but this is not the most convenient for the process due to psychological and legal reasons. Regarding the first ones, surrogates can have a major attachment to the baby, and talking about legal reasons, it can require an adoption process instead of the amparo trial, which makes the journey more complex regarding timelines and requirements. Most of the surrogacy cases done in Mexico are without the surrogate providing her genetic material, and we always recommend this pathway.

8. Is it allowed for the surrogate to receive compensation?

Yes, it is. Having in mind that everything that is not forbidden is permitted in Mexico, surrogates can have compensation for contributing to a surrogacy journey.

9. How do the participants in a surrogacy journey, as intended parents, agencies, clinics, and attorneys, take care of the surrogate to avoid any health or legal risks?

It’s necessary to ensure the surrogate is completely informed about all that is done in this important process. Medical and psychological support during the process is indispensable. Before starting, she needs to have a psychological evaluation as a socioeconomic study in order to verify she is not feeling forced to participate in this process according to her circumstances. Some agencies require that the surrogate is working and has her own family. It’s basically convenient that the surrogate has her own project life in order to ensure she is really making the surrogacy journey because she wants it and not because she needs it.

10. What kind of families can access a surrogacy process in Mexico?

Mexico recognizes all existent kinds of families, so same-sex couples, heterosexual couples, and single parents can access a surrogacy journey.

11. Are there bills to regulate surrogacy in Mexico?

There have been different legislative initiatives. However, they haven’t been approved, and at this moment, there is no federal legislation.

12. Why aren’t the states where there is legislation promoted in the international field?

Since there are some restrictions in the law regarding the nationality of the intended parents, the kinds of families that have access or the requirement they need to meet an amparo trial is also required in those states, so at the end, the process would be similar to the one is done in states where there is not legislation.

13. What is an amparo trial?

In Mexico, an amparo trial is a really important and useful judicial procedure to defend the human rights of any person in the country. The procedure is filed before a Federal Court and generally speaking, the argument is that an authority has violated the human rights contemplated in the Political Constitution of the country.

14. Why an amparo trial is filed in surrogacy cases?

Since there is no Federal legislation or State legislation in most of the states, an amparo trial is necessary to controvert the law, which considers the gestational carrier as the mother because of the birth. In that procedure, the judge is told that a surrogacy process was carried out.

15. When the amparo trial is filed in a surrogacy case?

This can vary depending on the lawyer who is processing the case. – There are lawyers who file the amparo trial once the birth occurs but before getting the birth certificate. In that scenario, before obtaining the birth certificate, a demand is filed asking the judge to recognize that a surrogacy process was carried out and that the gestational carrier is not the mother since she didn’t provide genetic material. With those arguments, the judge orders the Civil Registry to issue the birth certificate without the gestational carrier. – In other cases, an amparo trial is filed during the pregnancy, after the 12th pregnancy week, when it’s considered that the baby has the right to be protected. The objective of the Amparo is that the judge orders the Civil Registry to issue the birth certificate without the gestational carrier on it once the baby is born. – In the last legal pathway, the amparo trial can be filed after getting the birth certificate with the gestational carrier on it with the objective of removing her. This alternative is not usual, and Surrogacy Lawyer Mexico is waiting for definitive judgments to know if the judge grants the Amparo for that effect.

16. Can the Amparo trial’s judgment be unfavorable?

Yes, it’s a possibility. There are several Federal Courts in Mexico, and there can be a judge who is more conservative and doesn’t want to recognize the human right of access to surrogacy. In reality, he/she should obey the judgments of the Supreme Court of Justice, but even so, it can happen. Despite this being unusual, knowing the possibility exists is important. In that case, lawyers can always appeal the judgment. To avoid this scenario and reduce this possibility, it is convenient to go where amparo trials about surrogacy are more common.

17. What are the typical timelines for obtaining a favorable judgment for issuing the birth certificate?

Timelines for obtaining a favorable judgment can vary depending on which stage of the process the judge orders the birth certificate issuance. – By admitting the demand. This resolution is called “provisional suspension.” This happens on day one or two after the demand is filed. – Within two or three weeks after filing the demand through a “definitive suspension.” – Within a maximum of five or six months with the final judgment. The timelines always depend on the court’s agenda and the judge’s discretion; however, they are generally respected. We usually obtain the favorable judgment with the “definitive suspension” within two or three weeks after filing the amparo ́s demand.

18. What is the most common reason for delays for international clients making their surrogacy journey in Mexico?

According to our experience, the delays happen when we are working with same-sex couples or single fathers who are applying for Mexican passports. The timeline for the issuance of the passport, according to the law, is 45 labor days, but when the authority sees a birth certificate with these kinds of families, they do an investigation to verify that surrogacy was done in a legal way.