Mexico Surrogacy Laws 2025: Supreme Court Ruling Strengthens Surrogate Rights
Mexican Supreme Court Judgment
The Supreme Court of Mexico in July delivered judgment, Amparo in Revision 63 of 2024, that, in effect, regulates the process of surrogacy in Mexico. This decision is an enormous step forward in protecting the human rights of Mexican surrogates.
When obtaining parentage via surrogacy in Mexico, there are two methods:
- Naming the biological father and the surrogate as the birth mother, on the birth certificate as the parents,
- Instead, obtaining a court order, called an Amparo Order, by which one or both intended parents (and not the surrogate) are named as the parents of the child.
There is no precise translation of amparo from Spanish to English, but the best translation is that it means constitutional protection. An amparo judgment is to obtain an order from the court that under the Mexican Constitution, certain protections are given.
The need for an Amparo Order was set out in a Supreme Court of Mexico judgment in 2018 that recognised both intended parents (and not the surrogate) as the parents of a child born through surrogacy. The court relied on provisions of the Mexican Constitution and in particular, human rights related to family formation. In effect, the Court held that for those who need surrogacy in order to become parents that surrogacy is a protected attribute. To decode that language means that surrogacy cannot be banned in Mexico, although it can be regulated.
Then in 2021, the Supreme Court in another judgment struck down laws of the state of Tabasco that said foreigners could not access surrogacy there. The Supreme Court was clear that not only was surrogacy a protected attribute for Mexicans, but also for foreigners, who had the same protections under the Constitution.
In the July judgment, the Court held that in the absence of the legislature enacting laws regulating surrogacy, it would, in effect, do so by setting out requirements in order to obtain an Amparo Judgment.
What is the impact of the judgment?
The first requirement is that the surrogacy agreement must not be oppressive of the surrogate. In other words, it has to be a fair agreement. All other requirements set out below are subject to that overall test. The Supreme Court went through various clauses in the particular agreement and ruled whether they were oppressive or not, so as to give some guidance, but the overall rule is that the agreement must not be oppressive of the surrogate.
The second requirement, therefore, is that prior to entering into the surrogacy agreement, the surrogate must have had independent legal advice, independent medical advice and independent counselling.
The third requirement is that on the way through, if the surrogate needs psychological support, she is entitled to it.
The fourth requirement is that the surrogate has bodily autonomy. This extends to her wanting a termination within a few days of the implantation occurring.
The fifth requirement is that one or both intended parents must have a genetic connection with the child. For some intended parents where there is no genetic connection, this means that Mexico is not the right choice- or they may be able to undertake surrogacy there (but be unable to obtain an Amparo Order.
The final requirement is that when the Amparo Order is sought, the surrogate must have independent legal representation. In the case at hand, she did not. The lawyer who acted in the case purported to act for both the intended parents and the surrogate. Whilst the surrogate might be consenting to the Amparo Order, she should always be independently represented, according to the Court.
For Australians, aside from the genetic requirement, these are basic human rights that we take for granted in Australia. They aren’t of any great surprise to me, at least. I don’t consider that they will add anything substantial in cost to the journey of Australians undertaking surrogacy in Mexico. But what they will do is add further protections for the surrogate in upholding her human rights. That’s a good thing.
I was greatly comforted by this judgment (save for the need for there to be a genetic requirement), because while the Supreme Court has previously upheld the human rights of the intended parents (so that their family formation is recognised) and that of the child (likewise), it has not dealt with the human rights of the surrogate, until now.
The notion that surrogacy in Mexico is inherently risky now has to be confronted with the reality of the Supreme Court judgment that really strengthens the hand of the surrogate in protecting her interests.
