The lack of regulation and legislation on surrogacy in Mexico has left dozens of women defenseless who have found in these procedures an option to obtain economic resources, even if this means putting their lives at risk and violating their dignity and human rights.
“As a surrogate mother I declare and confirm that if I do not fulfill my obligations as they are given in my declaration, I will not receive the payment of 500 US dollars, in which case the future parents will be notified and all the money will be transferred to the agency as a penalty for breach of my obligations, “is stipulated in the document that ‘L’ signed and of which Political Animal It has a copy.
The research Baby Broker Investigation confirmed that this document, which is the only thing ‘L’ received about the procedure he carried out in 2019, has no legal value, nor would it have allowed him to take legal action in Mexico or the United Kingdom, where the company that allegedly hired her is registered.
Read: Abusive contracts without the right to health: the ‘global monopoly’ of surrogacy also operates in Mexico
For Norma Angélica Callejas-Arreguín, doctor in Social Sciences from the Autonomous University of Hidalgo and who in recent years has dedicated herself to the research of surrogacy in Mexico, the unfinished legislation on the matter has led to procedures being carried out outside the law “giving rise to conflicts and irreversible consequences”.
In Tabasco, for example, since 1997 this practice has been allowed and although its legislation was modified in 2016 in order to protect women who decide to undergo these procedures, and to prevent foreign couples from having access to the state, the reality is that it has been of little use because the conclusion of these “contracts” outside the authorities has not ceased.
In June 2021, the Supreme Court of Justice of the Nation (SCJN) addressed the issue and determined that the ban on foreign couples was discriminatory and called on states to legislate on the issue.
Something that the Court pointed out as necessary and that does not apply in the country is the intervention of a notary public for the conclusion of a surrogacy contract. The SCJN determined that this requirement is not excessive or irrational, nor does it constitute an obstacle to access to justice.
But, in the end, it was a resolution that, according to experts, opened the key for these procedures to continue to be done in violation of women’s rights.
“Cancun is currently promoted as a dream destination when surrogacy is not regulated there, but Europeans come with tourist packages of ‘come, relax at sea, have a great time and we take care of signing contracts’… contracts continue to be signed in Cancun when the issue is not regulated there,” insists the academic.
And the “contracts” that are celebrated every day in Cancun – and in other cities in Mexico – are, in large part, like the one signed by ‘L’ in November 2019: two letter-sized sheets, without letterhead, without the presence of a notary public – despite the decision of the Supreme Court that mandates it – and with clauses that leave women who have decided to be surrogates defenseless.
Pregnant women receive up to $ 12,500 for childbirth, have no medical insurance or possibility of suspending the process, but at least New Life in Cancun charges much more than that for other services. For example, the “Standard Surrogacy with a Local Donor” program costs $48,300.
Ideally, Callejas-Arreguín believes, there should be federal legislation regulating this practice and all procedures should be notified to health authorities.
Even, the expert added, the woman must have the possibility of changing her mind and accessing the Legal Interruption of Pregnancy (ILE), have life insurance, as well as medical expenses insurance before, during and after the procedure. All expenses must be borne by the applicants and if the couples seeking to rent a womb are foreigners – because in their countries the practice is prohibited – they must prove that they are legally established in Mexico and that they do not come to the country to do medical tourism as New Life does in Quintana Roo.
To date, and despite the Court’s resolution in June 2021, only two states in Mexico have specific laws on surrogacy: Tabasco (since 1997) and Sinaloa (2013).
In Coahuila, San Luis Potosí and Querétaro, surrogacy is prohibited. In the rest of the 27 entities of the country there are nonen type of law, and although there have been attempts to legislate at the local and federal level these have not materialized.
The law of Tabasco is the one that led to the discussion of the Court, when the then Attorney General’s Office filed an action of unconstitutionality on the local Civil Code. At that time, the majority declared unconstitutional section I of article 380 Bis 5 where it was foreseen as a requirement for the signing of the gestation contract that the contracting parties were Mexican citizens, since the ministers considered that this provision was in violation of the principles of equality and non-discrimination.
This determination, agreed Dr. Callejas-Arreguín and teacher Edmundo Aguilar, academic at the UNAM and professor of Law at the FES Acatlán, opened the door for Tabasco to return to be the destination of foreign couples who want to rent a womb, but also, somehow it was confirmed that it could be done in the rest of the country.
Finally, and given the importance of the issue, the plenary session of the SCJN called on the different levels of government, as well as the entities of the country to legislate on surrogacy, which has not happened.
The minister president of the SCJN, Arturo Zaldívar, explained that the regulation of surrogacy was urgent and a priority and that within this regulation the prohibition of the sale of minors should be stipulated, although he considered that pregnant women could obtain an economic remuneration for their participation.
“The rights of pregnant women should not be analyzed from a perspective of privilege. The regulation issued must take into account the unequal power relations between the parties, especially the weak position of pregnant women in order to prevent them from being victims of discrimination, coercion, violence or exploitation. The worst scenario is found in unregulated or prohibitive contexts. There, clandestinity can lead to the exploitation of the most vulnerable women, that is, those with low level of schooling or precarious socioeconomic position,” Zaldívar said.
It will be with a comprehensive regulation in the matter, which allows adequate contracts -onerous or free-, concluded Zaldivar, as the greatest protection will be guaranteed for all people involved in surrogacy processes.
A little more than a year after this resolution, there is no progress. The practice of these procedures continues unchecked. A click is enough for WhatsApp, Facebook, Instagram, Telegram and other social networks to find clinics established throughout the country that recruit women to participate in surrogacy under the promise of compensation of between 250 and 300 thousand pesos.
The cost and lack of legislation on the matter have made Mexico a very attractive destination for foreign couples interested in the procedure.
A report by Global Market Insights found in 2020 that the surrogacy industry is worth up to $4 billion, with a projection to grow to $33 billion by 2027.
Most of the industry’s growth is in countries where surrogacy has lax or unregulated legislation, underpaid surrogate mothers and no health insurance is guaranteed, creating an uneven geographic market where contracting parents come from rich countries and travel to poor regions where clinics offer cheaper services with economically vulnerable women.
CDMX: another VIP paradise for surrogacy
Although an attempt has been made and in 2010 a law on surrogacy was even approved – which was not published in the Official Gazette of the Government of the extinct Federal District and therefore never entered into force – in Mexico City surrogacy is also not regulated. In the current Legislature there are two proposals: one from the PRD and another from Morena, but while the discussion of the proposals waits, the capital of the country has become a paradise for foreign families looking for a surrogate mother.
“Mexico City does not have specific legislation on surrogacy but there is no prohibition to carry out the process. They have years of experience and favorable judicial sentences endorsing the legality of the process since 2016 “, offers the web portal of the firm Surrobaby, based in Spain.
The cost of service varies between 71 thousand and 78 thousand euros and only in the named VIP – and also the most expensive – medical insurance is contemplated for the pregnant person and life insurance in case during the process you lose an organ.
“Once the agreement with the surrogate mother has been signed before a notary and before the embryo transfer, a pjudicial scedimiento in the family courts of Mexico City. The judge will obtain recognition of the legitimacy of the process and his competence to, once the baby is born by judicial sentence, order the filiation of the minor in the name of the intended parents. The intended parents will be recognized as the only parents on the Mexican birth certificate. The baby will have the surnames of both parents or those of the single father, not that of the surrogate, “details the firm.
With this, the baby will be able to travel to Spain – a country that banned surrogacy – with a Mexican passport, since in Mexico access to citizenship is obtained by birth.
“Once in Spain, a process of paternal filiation will be carried out by DNA to obtain the Spanish nationality of the baby,” it is indicated.
This judicial procedure to achieve the identification of the baby in the name of the contracting parents is similar to the one offered by New Life to take advantage of, what they call, the “gray space” in Mexican legislation, although it has an additional cost of 6 thousand dollars.
“One option is to remove the surrogate mother from the birth certificate before leaving Mexico” with the support of a Mexico City-based legal team that initiates a process in courts so that the registration only includes the name of the contracting father. The baby travels with a passport of the father’s nationality and in the country an adoption process is initiated in the name of the two contracting parties.
The laws of Tabasco and Sinaloa
Although surrogacy has been practiced for 25 years in Tabasco, there is no data on all procedures performed or birth records.
The General Directorate of Civil Registry of Tabasco responded to a request for public information that has records since January 13, 2016 of the “notarial notices of assisted gestation and surrogacy contracts.”
GRAPHICS: Jesús Santamaría
In the case of Sinaloa, different government instances – which are part of the obligations in the procedure according to local law – offer the following data.
The state’s Civil Registry says it received eight notarized notices of procedure in 2019, another five the following year, again eight in 2021 and three this year.
The Ministry of Health, for its part, reported in a transparency request that in 2017 it received 17 notifications of surrogacy contracts made before a notary public, in addition to five in 2018, seven in 2019, three in 2020 and four in 2021.
And in the case of the state’s Central Health Services Office:
Both the legislation of Tabasco and Sinaloa provide that surrogacy will be a procedure that can be accessed by Mexican citizens united in marriage or concubinage and who accredit, through a medical certificate, the impossibility for pregnancy. In both entities, the State Health Secretariat will be responsible for controlling and monitoring each surrogacy process.
Both legislations allow homologous gestation, that is, when the gametes of the applicant couple are used, and heterologous, which refers to when one or both gametes foreign to the applicants are used.
They also require that the pregnant woman be between 25 and 35 years old and the possibility of donating the egg is contemplated.
However, among the differences of both regulations it can be noted that, for example, in Tabasco a pregnant woman is allowed to carry out three reproductive processes, while in Sinaloa only two are allowed.
Neither of the two legislations details how the record of procedures to which a pregnant woman has undergone will be kept. There is no public registry or other similar tool.
Regarding whether there will be economic compensation to the pregnant woman in Tabasco, it is not specified whether onerous or altruistic processes are allowed, while in Sinaloa both practices are considered.
Sinaloa also contemplates that those women who wish to be pregnant must be mothers, at least, of a healthy biological child, while in Tabasco this requirement is not specified.
On the contracts concluded so that the procedure can be carried out, both legislations consider that it must be signed by those involved in the presence of a notary public; however, in the case of Tabasco the document must be turned over to a competent judge for approval. When it has this approval, it turns to the Ministry of Health and Civil Registry of the entity for registration and recognition of filiation rights.
In the case of Sinaloa, once the contract has been signed, which must specifically have the signature of the director of the clinic where the procedure will be carried out, the Civil Registry of the entity must be notified.ad within a period not exceeding 24 hours for filiation of the minor to operate in favor of the applicants.
The Baby Broker Investigation project featured journalists from Animal Político in Mexico, iFact in Georgia, The Observer in the UK and Eesti Päevaleht in Estonia. Independent reporters in Kenya and Cambodia also participated. The research was coordinated by Finance Uncovered and received support and funding from the Pulitzer Center. The full investigation can be read, in English, here.
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