Surrogacy in Mexico: How is the legal situation in each of the Mexican states?

By (project manager) and (babygest staff).
Last Update: 10/02/2019

In Mexico, the lack of legislation on surrogacy in most parts of the country means that there is a legal limbo. Only four Mexican territories speak of surrogacy in their legal system:

Tabasco
only altruistic surrogacy is permitted for heterosexual couples.
Sinaloa
the law allows heterosexual couples as long as there is a medical disability.
Coahuila
Surrogacy is prohibited in this state.
Querétaro
as in the previous case, it’s not permitted.
Mexico City
what exists is a bill focused on securing the filiation rights of intended parents.

After the reform of the law, currently in both Sinaloa and Tabasco only Mexican citizens have access to surrogacy. Therefore, surrogacy in Mexico is currently not available to foreigners.

Surrogacy Law in Tabasco

Surrogacy is permitted for heterosexual couples who are legally married or who act as husband and wife, i.e. who live together. Only surrogacy with an altruistic character is allowed.

In order to be able to make a good interpretation of the Law of the State of Tabasco in this matter, it is necessary to bear in mind that it contemplates two types of surrogates:

The gestational carrier
would be defined as a woman who lends herself to the gestation of another couple's embryo, which is the product of the fertilization of an egg that does not belong to her. Therefore, there will be no genetic link between the surrogate and the baby.
The “surrogate mother”
in this case, the surrogate will not only donate her ability to gestate to a couple so that they can have a child, but will also provide their eggs to achieve pregnancy.

You can read more about these types of surrogacy and their differences in the following article: What are the different types of surrogacy?

Requirements for performing surrogacy in Tabasco

In the first place, it is important to point out that since the last modification of the Civil Code in December 2015, surrogacy in Tabasco has been relegated exclusively to Mexican citizens. Prior to this update, Tabasco was the only Mexican destination for foreign couples. Now, surrogacy is not legally permitted for foreigners anywhere in Mexico.

This is a very restrictive law that, if faithfully complied with, will not allow many cases of surrogacy to occur, because meeting all the requirements is very complicated. It is important to emphasize that the surrogacy process will be carried out directly between the future parents and the surrogate, without the intervention of agencies or coordinators specialized in surrogacy.

The new regulations on surrogacy in Tabasco have given rise to a wide variety of opinions and great uncertainty not only about the cases that are already underway, but also about the way in which new applications will be dealt with.

However, the Civil Code provides for the relevant legislation (explained above). With it, it accredits that it is legal and contractual agreements regarding this matter are accepted with a number of requirements for intended parents and surrogates. All of this is detailed below:

What does the Civil Code say?

With the two clear concepts above, understanding Tabasco's legislation is easier. It recognizes surrogacy as a valid practice, making explicit reference to this reproductive practice in the Civil Code of the State of Tabasco:

In the case of children born as a result of the participation of a surrogate mother, the maternity of the contracting mother who presents her shall be presumed, since this fact implies her acceptance. In cases where a surrogate mother is involved, the order for full adoption must be complied with.

A gestational carrier is a woman who carries a pregnancy to term and provides the component for gestation, but not the genetic component. On the contrary, the surrogate mother provides both the genetic material and the ability to gestate.

As the law says, when the surrogate has a genetic link with the child, then she will be recognized as the legal mother of the baby. In that case, the pregnant woman must renounce her maternal rights in favor of the intended mother, who must adopt it. If there is no genetic link with the baby, the intended mother will be recognized as the legal mother of the child.

And continues as follows:

When a second woman participates in the reproductive process, the contracting mother is presumed to be the legal mother, whether or not she provides the egg.

What the law makes clear here is that, regardless of whether the ova are from the intentional mother or from a donor, as long as they have not been provided by the surrogate mother, filial recognition will be in favor of the intended mother.

Intended parents

In order to have access to gestational surrogacy treatment, the contractors must be a married or living together as if they were married, and must submit to the Ministry of Health of Tabasco a medical certificate showing that they are unable to procreate children for health reasons.

A woman intending to be a mother cannot be more than 40 years old. This is a restriction by which many couples will be discarded, as they usually resort to surrogacy after several years trying to have a child both naturally and through numerous failed assisted reproduction treatments.

On the other hand, the parents of intention have the obligation to contract a medical insurance of greater expenses to the pregnant woman that covers the pregnancy as well as the childbirth and postpartum period (article 380 Bis 7 paragraph 3).

Major medical insurance only cover pregnancy if the policyholder has been insured for at least 8 months. Since pregnancy is not considered an illness, there are no exclusive medical insurances for the stage of pregnancy and the postpartum period.

In addition, after the birth of the baby, the prospective parents must perform a full adoption procedure, regardless of whether or not the baby is genetically theirs. This condition contradicts Tabasco's own law of filiation and adoption, since it does not make sense to grant again a filiation that already exists with the genetic link.

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The surrogate mothers

A woman who offers to gestate the child of another person or couple must be between 25 and 35 years of age (article 380 Bis 9 5 section 3).

This condition prevents quite common cases of surrogacy in which grandmothers or aunts of the future newborn offer to conceive it. This type of situation was not contemplated by the Tabasco Congress in establishing the new legal guidelines.

From now on, all surrogacy processes must be supervised and controlled by the Ministry of Health of the state of Tabasco. Thus, this body (and not the agencies) will be responsible for determining the clinical, psychological and social profile of surrogate mothers.

Besides, it will ask the other institutions involved (doctors, fertility clinics, courts, hospitals, etc.) for detailed reports on each case.

Surrogacy Law in Sinaloa

In order to carry out a surrogacy process in Sinaloa, it is necessary that the future parents are Mexican citizens and, in addition, that the intended mother has medical incapacity to gestate a baby.

As reflected in Article 283 of the law on assisted reproduction techniques of the state of Sinaloa:

Surrogacy is effected through the medical practice whereby a woman gestate the product fertilized by a man and a woman, when the woman suffers physical impossibility or medical contraindication to carry out the gestation in her uterus and is substituted by a surrogate who carries in her uterus the embryo of the surrogate parents and whose relationship ends with the birth.

In the same way, the requirements to become a surrogate are:

  • Being between 25 and 35 years old
  • Being the mother of a healthy blood-born child
  • Having good physical and mental health
  • Giving voluntary consent to lend her womb
  • She must prove by medical opinion that she were not pregnant during the year prior to embryo implantation and that she has not participated more than two consecutive times in this procedure.

Any form of surrogacy, i.e. partial, total, altruistic or with compensation, is also permitted.

The reality is that, currently, there is a bill intended to prohibit surrogacy in this Mexican state, although it has not yet been approved and therefore continues to be only a bill.

Bill about surrogacy in Mexico City

In 2010, a bill was drafted to regulate and allow surrogacy in Mexico City. This proposal establishes the obligation of the surrogate mother to deliver the baby to the requesting parents after birth and from the requesting parents to receive it.

It should be noted that these are just some of the aspects covered by this bill, which has yet to be approved.

Filiation and birth certificate

It will be the Intended parents who have the filiation rights. In addition, they will be responsible for all medical expenses generated from the transfer of the embryos to the medical discharge of the surrogate mother, regardless of whether or not the birth is achieved.

Under the proposal, the birth certificate must be issued by the attending physician under the terms of the Federal District Health Act. In the event of the separation or death of one or both applicants during gestation, a Family Judge will decide the situation of the person born in accordance with the legislation in force.

Intended parents

Applicant parents must know and respect the right of the surrogate mother to decide to terminate the pregnancy under the legal terms established by the Penal Code, without incurring civil or criminal liability. Compensation may also be provided in the event of the death or permanent incapacity of the surrogate mother as a result of the pregnancy.

Likewise, they will be those who provide the embryo to be transferred, they undertake to comply with the legislation in force regarding paternity, looking after the interests of the minor, and to exercise the rights and obligations that maternity and paternity imply.

Choosing the surrogate mother

When selecting the surrogate mother, it is established that she should preferably be a woman with a family relationship, friendship or civil relationship with the applicant parents. If there is no voluntary woman who fulfils these characteristics, they may have recourse to another woman who is alien to the environment of the soliciting parents. In either case, a health certificate from the treating physician must be presented.

The agreement of the parties must be signed before a notary public. Consent must be indubitable and express. The rights and obligations that emanate from it are personalisms, having no place to legal representation for its signature. This should occur prior to any transfer of human embryos.

Costs of treatment

The price of treatment, as in any country, depends on the needs of each individual and the unforeseen events that may arise. For example, if an egg donor is required, or it is a multiple pregnancy, etc., the treatment will become more expensive.

It is estimated that a surrogacy pregnancy in Mexico costs between 40,000 and 60,000€.

FAQs from users

Is there a general regulation of surrogacy in Mexico?

By Natalia Álvarez (project manager).

Not yet, although there is an initiative to reform the General Health Law to include the regulation of surrogacy. It has not yet been approved, so Mexico does not have legislation on this practice that applies throughout the country.

By Natalia Álvarez (project manager).

There is only one law that expressly regulates surrogacy in Tabasco, Sinaloa, Coahuila and Querétaro, and only in the first two is allowed, although not for foreigners. The rest of the states have no regulation, so it is neither prohibited nor permitted, there is a legal vacuum, so the intended parents and the surrogate mother are not protected by law.

Is surrogacy in Jalisco possible?

By Natalia Álvarez (project manager).

In Jalisco, as in Mexico City, there have been bills to regulate surrogacy, but it has not been accepted and, therefore, there is still no regulation.

Can a single man or woman benefit from surrogacy in Mexico?

By Natalia Álvarez (project manager).

No. Only heterosexual married or marital couples have access to surrogacy in the two states that allow it. A single man or woman, as well as homosexual couples, cannot use a surrogate mother.

Suggested for you

As we have seen, Mexico is not a recommended destination for foreigners, since the last reform of the legislation restricted access to Mexican citizens exclusively. Therefore, we recommend choosing another destination among those that are considered safe. Find out more here: Which country allows surrogacy to foreigners?

On the other hand, the United States and Canada are two countries also located in North America in which surrogacy is permitted and with a legal framework favorable to foreign intended parents. If you want to know more about the conditions there, we invite you to visit the following articles:

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References

Authors and contributors

 Natalia Álvarez
Natalia Álvarez
Project Manager
Graduated in Business Administration from the University of Alicante. She has more than 9 years of experience in the field of assisted reproduction and was the creator and director of the first assisted reproduction fair in Spain. She is the director of Wearesurrogacy and is an expert in the sector of surrogacy because during all these years has had the opportunity to know hundreds of real cases of couples who have carried out treatments for surrogacy and the best professionals, international clinics. More information about Natalia Álvarez
Adapted into english by:
 Romina Packan
Romina Packan
Babygest Staff
Editor and translator for the Babygest magazine in English and German. More information about Romina Packan

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