Surrogacy Laws and Regulations in Mexico
Mexico Surrogacy Law
Starting on June 5, 2021, the country’s highest court debated the issue of surrogacy over several days. The Supreme Court ruled that surrogacy was constitutional and that it was in favor of regulating it based on the previous modification of the Civil Code of Tabasco. The Court’s main argument was that if surrogacy was prohibited entirely; it could give rise to black market operations causing larger problems for the State.
As the Court stated: “Prohibiting this practice would generate greater secrecy and greater risks for pregnant women, as well as uncertainty for minors born, since the State cannot offer protection to the parties, monitor the conditions of compliance with contracts, and ensure that the performance of clinics and agencies is in accordance with human rights.”
The Court indicated that Article 4 of the Constitution establishes a mandate for the laws to protect the organization and development of the family, without specifying a particular modality or conformation. Likewise, the Court pointed out that both in the national and international systems, the prerogative of everyone to decide freely and inform the number and spacing of their children has been recognized as part of the right to private life, in the event that they want to become parents.
It was highlighted that the right to use assisted reproductive techniques to achieve the birth of a child is accessible to all people, either for infertility issues in the case of heterosexual couples, or, in the case of same-sex couples, for the biological impossibility that this represents as a male and female element are not present, which means that same-sex couples should be granted the right to seek medical advances in order to access paternity or maternity.
The Court noted in its judgement: “Surrogacy is a complex phenomenon surrounded by value judgments, which requires identifying the rights at stake, particularly those of the most vulnerable. Comprehensive regulation is required that puts the best interests of children at the center.”
Important Points
Filiation
The Court also devoted itself to the study of how to establish the affiliation with respect to the products that are conceived from surrogacy. In this regard, it was said that in the use of medical technology to conceive a child, the main and essential element to establish the filial bond is the will of the parties, which will be called the “procreation will.” This consists of the desire to assume a child as one’s own, even if biologically it is not, and therefore accept all the obligations that derive from it.
This “procreation will” is protected by the Constitution and constitutes the foundation of a filial relationship between the parents and born child through any of the assisted reproduction techniques.
Compensated and Altruistic Surrogacy
The Court determined that surrogacy is valid altruistically as well as if carried out through a contract and in exchange for financial compensation. The surrogate has the right to charge or not for the pregnancy service.
Most importantly, the Court stressed that economic compensation for the surrogate mother should not be seen as the sale of a minor, but as the right of a woman to decide whether or not she provides a pregnancy service and, therefore, whether she charges for it or not.
Agencies
The Court decided that it is valid for specialized agencies to act as intermediaries in the practice of surrogacy, and that they obtain an economic benefit for it. Agencies can be intermediaries, but the State must ensure the protection of the rights of all.
Contract Requirements
In its deliberations, the Court deemed it is valid, as established by the law in Tabasco, that the signing of a surrogacy contract is required to be carried out before a notary public, since it is a rational requirement that gives certainty of the process to both the contractors and an agency.
The Court invalidated an article in the Civil Code of Tabasco that “The gestation contract will be signed by the contracting mother and father with the surrogate and, if applicable, her spouse or common-law partner.” The ministers unanimously indicated that the reproductive freedom of the pregnant woman is violated by making her have to obtain the authorization of her partner. As noted, “This norm perpetuates the stereotype that men have the right to a woman’s body and her reproductive capacity.”
It also invalidated that the contract must be signed by the contracting mother and father, because it refers only to heterosexual couples, discriminating against same-sex couples and also single people who wish to resort to surrogacy to have a child.
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