Should You Go to Mexico for Surrogacy?

Surrogacy in Mexico: Should You Go to Mexico for Surrogacy?

Surrogacy in Mexico is a complex process, especially for Australians considering options overseas. Mexico has emerged as a popular destination for surrogacy, but it’s essential to understand the legalities and logistics involved before making any decisions. In this video, Award Winning Surrogacy Lawyer, Stephen Page discusses whether or not you should go to Mexico for surrogacy.

When it comes to international surrogacy options, Mexico has increasingly become a destination of interest, especially for Australians exploring their family-building options overseas. However, surrogacy in Mexico is a complex and nuanced process that requires a deep understanding of legal frameworks, logistical challenges, and the potential risks involved. As a fertility lawyer with years of experience supporting Australian intended parents, I aim to provide a comprehensive guide to help you decide if Mexico is the right choice for your surrogacy journey.

Introduction to Surrogacy in Mexico for Australians

Since 2014, I have assisted several Australian clients who chose Mexico as their surrogacy destination. Despite some negative media headlines and concerns surrounding surrogacy practices in Mexico, one constant I have observed is that Australian intended parents have generally faced no major difficulties in bringing their babies home. This is a critical reassurance for those considering this path.

One of the unique aspects of surrogacy in Mexico is the typical waiting period after birth before the child can leave the country. Usually, it takes about eight weeks after the baby is born before parents can bring their child back to Australia. This waiting period is largely due to processes related to obtaining passports, especially those involving U.S. passport regulations, as many parents do not transit through the usual U.S. cities like Los Angeles or San Francisco. Instead, alternative routes such as flying north via Vancouver on Air Canada or south through Santiago, Chile, are commonly used.

Even during the COVID-19 pandemic when international travel was heavily disrupted, this process only extended by about two weeks, highlighting the relative stability of surrogacy arrangements in Mexico when carefully managed.

The Legal and Geographic Landscape of Surrogacy in Mexico

Mexico is a vast and populous country with a federal system comprising 31 states, each with its own laws and regulations. This federal structure means that surrogacy laws vary significantly from state to state, which is a crucial factor when considering Mexico for surrogacy.

About a decade ago, the state of Tabasco was the hotspot for surrogacy due to its liberal laws. On the map, Tabasco is located at the bottom of the “hook” shape of Mexico, and it quickly became a “gold rush” destination for international surrogacy, particularly for Australians. However, this surge was marred by scandals, including allegations of exploitation and illegal practices involving certain agencies.

A notable example was the case involving Rudy Rupac, an Indian-American who was accused of trafficking Colombian women to act as surrogates for American clients. His agency was reportedly a Ponzi scheme, which led to the closure of surrogacy services in Tabasco and eventually his imprisonment by the FBI. This incident led to increased scrutiny and tighter controls on surrogacy in the region.

Despite these challenges, surrogacy has continued in Mexico, albeit in smaller numbers and primarily in other states such as Quintana Roo (home to Cancun) and Mexico City. These regions have become the new centers for Australians seeking surrogacy services, but with a continued emphasis on caution and careful selection of agencies and clinics.

Variability of Surrogacy Laws Across Mexican States

• Most Mexican states do not have explicit laws regarding surrogacy, leaving the practice in a legal grey area.
• Between two to five states have outright banned surrogacy.
• States like Tabasco, which were once surrogacy hubs, have changed their stance due to regulatory and ethical concerns.
• Currently, Quintana Roo and Mexico City are the main states where surrogacy arrangements are pursued by foreigners.

Choosing the Right Surrogacy Agency and IVF Clinic in Mexico

One of the most critical decisions when considering surrogacy in Mexico is selecting a reputable agency and IVF clinic. This selection process is fraught with challenges, given the wide disparity in quality and ethical standards among providers.

Surrogacy Agencies: The reputation of agencies varies significantly. Some are professional and transparent, while others have questionable practices that could jeopardize your surrogacy journey. Due to Mexico’s issues with corruption and lack of stringent regulatory oversight, it is essential to conduct thorough due diligence before committing to any agency.

IVF Clinics: Choosing an IVF clinic in Mexico is equally complicated. Unlike Australia, which has the Australian and New Zealand Assisted Reproductive Database (ANZARD) offering transparent success rates and performance data for clinics, Mexico lacks such publicly accessible and reliable data. Clinics must register with the federal government, but this does not guarantee quality or success rates.

From my experience, there have been cases where clinics in Cancun have made critical mistakes, such as selecting the wrong embryo or mislabeling embryos, which could have severe consequences for intended parents. This underscores the need for vigilance and seeking expert advice when selecting a clinic.

Legal Representation and Surrogacy Rights in Mexico

Engaging a knowledgeable lawyer experienced in Mexican surrogacy law is indispensable. The legal landscape is complicated by recent Supreme Court decisions that have reshaped the rights of intended parents and surrogates.

Key Supreme Court Decisions Affecting Surrogacy

1. The 2021 Supreme Court Decision: This case involved a gay couple from Spain who pursued surrogacy in Tabasco, despite the state’s ban on foreigners using surrogacy services. The Supreme Court ruled that such bans were invalid as they violated human rights, affirming that foreigners and LGBTQ+ individuals have the same surrogacy rights as Mexican locals. This decision provides a protective blanket over surrogacy, making it difficult for states to discriminate against foreigners or certain groups.
2. The 2018 Supreme Court Decision: This ruling centered on the recognition of intended parents. It involved a gay couple from Yucatán who sought to be legally recognized as the parents of their surrogate-born child. The local registration authorities initially refused, placing the surrogate and biological father on the birth certificate. The Supreme Court overturned this, emphasizing “procreative intent” as the basis for parenthood. This means the intended parents are legally recognized as the parents, not the surrogate, which is crucial for parental rights and citizenship.

This latter decision is especially important because some Mexican states and agencies still attempt to register the surrogate as the legal mother, which creates complications for intended parents returning home. Avoiding such issues requires careful legal planning and ensuring contracts and registrations comply with the Supreme Court rulings from the outset.

Legal Risks for Australians Pursuing Surrogacy in Mexico

Australians must also be aware of the legal risks associated with engaging in commercial surrogacy overseas, including Mexico. Several Australian states have strict laws that criminalize commercial surrogacy arrangements conducted abroad.

• Queensland, ACT, and New South Wales: Commercial surrogacy overseas can be a criminal offense. In NSW, this applies even if the person is domiciled there.
• South Australia, Northern Territory, and Western Australia: Similar prohibitions exist, so legal advice is essential before entering any surrogacy agreements.
• Egg Donation: Engaging in egg donation can also be illegal in many Australian states except Victoria and Tasmania.
• Adoption: International adoption from Mexico is almost certainly illegal in all Australian jurisdictions.

Given these legal complexities, consulting with a family or fertility lawyer before starting the surrogacy process is vital to avoid costly and stressful complications later.

Practical Tips for Australians Considering Surrogacy in Mexico

Based on my experience working with intended parents, here are some practical recommendations to navigate surrogacy in Mexico successfully:

1. Start with Legal Advice: Seek expert legal counsel early in the process. This ensures your contracts, agreements, and plans comply with both Mexican and Australian laws.
2. Choose Reputable Agencies and Clinics: Demand transparency about success rates, clinic credentials, and agency reputations. Don’t hesitate to ask for references or speak to previous clients.
3. Understand the Waiting Period: Be prepared for the 8-week (or longer) wait after birth before your baby can leave Mexico. Plan your travel and accommodation accordingly.
4. Plan Your Travel Routes: Avoid the usual U.S. transit points to prevent passport issues. Consider flying through Canada or South America.
5. Ensure Parental Rights Are Secured Early: Use contracts and legal instruments that reflect the Supreme Court’s recognition of intended parents based on procreative intent.
6. Be Aware of Australian Legal Restrictions: Know the laws in your home state or territory related to commercial surrogacy and egg donation overseas.
7. Budget for Additional Legal and Administrative Costs: Factor in expenses for legal advice, travel, accommodation, and possible delays.

Conclusion: Is Mexico the Right Choice for Your Surrogacy Journey?

Surrogacy in Mexico offers a viable option for Australians seeking to build their families, but it comes with unique challenges and legal intricacies. The country’s federal structure means that laws vary widely by state, and the lack of uniform regulation requires careful navigation.

Recent Supreme Court rulings provide some protections for intended parents, affirming their rights regardless of nationality or sexual orientation. However, the legacy of scandals and the presence of unscrupulous agencies mean that due diligence is non-negotiable.

Choosing Mexico for surrogacy demands thorough research, trusted legal advice, and a clear understanding of the logistical hurdles involved. By approaching the process with caution and preparation, intended parents can minimize risks and increase the chances of a smooth, successful journey to bringing their child home.

If you are considering surrogacy in Mexico, take the time to educate yourself on the legal landscape, select reputable professionals, and seek advice tailored to your specific circumstances. Doing so can make all the difference in turning your dream of parenthood into reality.