You’re probably familiar with surrogacy, an agreement in which a woman agrees to carry a child for a person or couple who intend to be the parents of the child born from that pregnancy. But when these hopeful parents choose surrogate mothers in countries with a weak legal system — like Mexico — abuses tend to happen.
Tracking the exact birth figures through surrogacy in Mexico is impossible due to the lack of regulation in this area. According to news outlet N+Focus, for example, the state of Sinaloa registered 115 births through surrogacy between 2016 to 2022. Only one in five involved a signed contract.
“Currently, a surrogacy contract is left to the discretion of private agreements regarding the rights that the State should safeguard, such as the right to one’s family, to know one’s origins, to remain with one’s family of origin, and to have a nationality, among others,” Sofía Rosas Michel, a University of Monterrey-trained lawyer specialized in surrogacy, told me.
In 2021, Mexico’s Supreme Court (SCJN) ruled that a 2016 modification of the state of Tabasco’s Civil Code that banned surrogacy for all except married heterosexual Mexican couples was unconstitutional on the grounds that it discriminated against foreigners, LGBTQ+ couples and unmarried people, as well as violating the best interests of the child and women’s autonomy.
The ruling established surrogacy as a protected medical procedure and the legality of both paid and free surrogacy. The court’s ruling also emphasized the need for federal authorities to regulate surrogacy with criteria based on human rights and medical science. However, most states have not adopted the ruling into their legal system. Only two states allow surrogacy, two states forbid it and the remaining 28 states say nothing on the subject in their civil or family codes.
As a result, “surrogacy agreements in Mexico are carried out under the legal logic that what is not forbidden is allowed,” Rosas said. This deficient regulation frequently leads to human right violations against the child and the surrogate mother, as explained below. Furthermore, in the states with no regulation the parties have no legal resources to claim compliance with the agreement.
Still, international surrogacy agencies advertise Mexico as a safe and legal country for the process, leading the U.S. embassy to warn those wishing to pursue surrogacy in Mexico of the possibility of issues with health care and administrative and legal hurdles to documenting children born through surrogacy
The embassy also warns intendent parents that surrogate mothers may assert their parental rights during the surrogacy process regardless of contracts relinquishing those rights. “Mexican surrogacy law is incomplete and open to wide interpretation,” the embassy’s website says. “Be wary of any agency or clinic that guarantees the legality of surrogacy in Mexico or fails to explain the risks.”
What are the risks of a surrogacy contract in Mexico?
Surrogacy contracts are explicitly forbidden in Querétaro and Coahuila. They are allowed — with many caveats — in Tabasco and Sinaloa and are unregulated in the rest of the country. Hence, a surrogacy contract in Mexico poses some risks like months-long delays in Mexico for intended parents while waiting for court decisions on parental rights and legal impediments to documenting children born through surrogacy.
Beyond these risks, surrogacy contracts in Mexico may lead to human rights violations. A study by the Information Group on Reproductive Choice (GIRE) found that the most common human rights violations include the right to non-discrimination, the right to legal certainty and the child’s right to identity.
GIRE, for instance, has documented violations of the children’s right to identity due to the absence of birth certificates for children born in Mexico to surrogate mothers. It has also recorded cases in which agencies retain medical information regarding the surrogate mother’s care and treatment, meaning a direct breach of their right to health. Other examples include discrimination against them by the medical personnel, who act in the interest of the intended parents rather than the surrogate mother.
“The state must find a way to protect those who wish to be parents, women who decide to be surrogates for other families and the children born from these kinds of agreements,” GIRE says.
However, according to Sofía Rosas, the rights of pregnant women are often left in greater vulnerability than those of the children.
“It’s worth pointing out that the countries where intended parents look for surrogate mothers are developing countries. This has created a form of ‘reproductive tourism,’” she says. “This suggests that individuals with fewer opportunities are placed at a disadvantage compared to those who travel to pay for a child to be conceived. It raises questions about whether it is legitimate for women to make this choice, especially when they are in economically and socially vulnerable situations, as it may constitute reproductive exploitation.”
After the SCJN approved surrogacy in 2021, groups like feminist organization Nosotras Tenemos Otros Datos spoke out against the ruling. They argued that “wombs for rent do not respect, promote or guarantee the human rights of women or children.” They stated that not prohibiting this practice would be equivalent to supporting and reproducing inequalities and violence against women within a patriarchal and capitalist system.
On the other hand, GIRE research coordinator Verónica Esparza Pérez urged the government to allow surrogacy in all states of the country. Her organization has said that in countries like Mexico, “its prohibition implies less state control to mitigate risks and guarantee minimum conditions of consent. Furthermore, it criminalizes those who carry it out.”
This reflects a problem that can be summarized in two major positions, Rosas explains: one that seeks the abolition of surrogacy and one that is in favor of its regulation.
How much does a surrogacy contract cost?
The deficient regulation of surrogacy in Mexico makes it difficult to estimate the amount of money that Mexican surrogate mothers receive from intended parents.
According to a four-month study by Gaceta UNAM and UNAM Global TV , the compensation and living expenses in a surrogacy agreement are classified as “support” voluntarily given to women, supposedly to avoid the perception of “marketing babies.” Therefore, there is no specific amount that women must receive, the study explains.
However, UNAM had access to a surrogacy contract that agreed on a total amount of 300,000 pesos (around US $16,800). Furthermore, social media posts of intended parents looking for surrogate mothers offer similar amounts.
The “Surrogacy Market 2023-2032” report, published by Global Market Insights, states that the surrogacy industry will reach US $129 billion by 2032. As the industry grows, Mexico needs to take a clear stand on surrogacy. As GIRE researcher Amneris Chaparro Martínez told UNAM Global TV in January: “If surrogacy is an industry, it’s important to determine what would be the fair payment for someone who will compromise their body in such an intense way.”
What do you think Mexico should do about surrogacy? Leave a comment with your opinion.
Gabriela Solis is a Mexican lawyer turned full-time writer. She was born and raised in Guadalajara and covers business, culture, lifestyle and travel for Mexico News Daily. You can follow her lifestyle blog Dunas y Palmeras.
