Mexico is a federated state, which means surrogacy legislation is not a simple issue. However, it is important to know that surrogacy – altruistic or commercial- is not prohibited and can be accessed and used as a way to grow one’s family. Although surrogacy is not expressly regulated at the national level, it has been developed by some of the Mexican federal entities and through extremely progressive judicial precedents.
Surrogacy is expressly regulated in the federal entities of Sinaloa and Tabasco, which allow it under certain requirements. For its part, the practice is expressly prohibited in San Luis Potosí and, under certain circumstances, in Querétaro. While Tabasco and Sinaloa have specific regulation for carrying out surrogacy some of it has been rule as discriminatory by the courts -for example, Tabasco prohibits foreign people from signing a surrogacy contract, which means that in order to access this practice Intended Parents may need to file a constitutional trial to have a judge remove these prohibitions.
Surrogacy has also been developed by the judicial branch through a series of cases. On one hand, it should be noted that the Mexican Supreme Court has ruled that all people have the right to access assisted reproduction procedures, since this is protected under article 4th of the Constitution, which provides for the right to decide freely, responsibly and informed about the number and spacing of children. On the other hand, the Supreme Court has resolved various cases in which it has established that surrogacy is a practice that, carried out carefully and following certain minimum requirements, must always be recognized and protected in accordance with the right to form a family, the right to personal identity of the child, as well as the right to reproductive autonomy of the surrogate woman.
In greater detail, the Supreme Court has established minimum requirements that must be monitored, such as that the contract clearly establishes the risks and obligations that the parties assume; that both parties clearly know the sanctions in case of non-compliance, that one party cannot deny the surrogate woman her rights or put her health at risk, as well as that if a financial benefit is agreed upon it has to be properly fulfilled and monitored by authorities too.
In addition to the above, the Supreme Court has established other requirements in order to protect both parties. Thus, for example, the surrogate woman must be in good health and within an age range of between 25 and 35 years, she must sign informed consent prior to medical treatment, and she does not need her partner’s permission to enter into the contract. For their part, Intended Parents may or may not be married, may be foreigners, do not have to be heterosexual, and may be advised by agencies or clinics throughout their process.
Based on the above, surrogacy is a practice that is carried out in Mexico City by signing a contract that seeks to protect both parties, but always recognizing the vulnerability this contract might create. Said contract can be presented prior to the birth of the baby before local courts to try to obtain the birth certificate with the names of the intended parents at the time of birth and not delay departure from the country – although this process may not always be successful -, or after the birth of the baby, an amparo trial (human rights trial) can be initiated in order to obtain a birth certificate. This last procedure, although it may delay departure from the country, has a favorable and safe result for the parties.
The case of Mexico City is different because even when there is no specific civil legislation that specifies a one process to do it, the access to reproduction techniques is recognized as a human right by Mexico City’s local constitution. In this sense, surrogacy has been happening for a long time and not in an unsafe manner, but under the protection of various judicial precedents. The legal pathway, while safe, should be discussed between the Intended Parent(s) and their choice of lawyers so that a tailored legal process can be initiated