Introduction
Mexico is a federal state, in which all the countries that make up the Union have their own civil and penal code and their own prosecutor's office.
Surrogacy is not regulated in all Mexican states, but only in Tabasco and Sinaloa, where, since the end of 2016, it has been permitted only to Mexican citizens.
However, in some states, surrogacy is neither regulated nor prohibited. Therefore, in Mexico City, the capital of the Federal District, surrogacy continues to be practiced with broad legal guarantees, since, based on the provisions of the Local Civil Code and the Mexican Constitution, the recognition of the parental relationship between the commissioning parents and the children born through surrogacy is obtained by court order.
Since early 2018, thanks to local legislation on reproductive rights, this practice allows anyone to be recognized as a parent (and therefore, single individuals, heterosexual couples, and homosexual couples can access surrogacy). The only requirements are the absence of pending criminal charges and the ability to demonstrate that the intended parents have the necessary financial means to raise and educate the child. In the case of couples, proof of marriage is also required for direct legal recognition of parentage in favor of both parties.
Therefore, it can be stated that the process does not differ much from that of the states of North America and the relative trial for the recognition of parentage begins after achieving pregnancy.
As in the United States, in Mexico the following applies: jus soli, This means the child has the right to obtain Mexican citizenship simply by being born in Mexico. This gives Spanish parents the advantage of being able to leave the country and return to Spain with their child despite any potential registration problems in Spain or at the Spanish Consulate in Mexico City.
Surrogacy legislation in Mexico: express secondary regulations and regulatory gaps
As previously mentioned, in Mexico there is no explicit federal regulation regarding parentage, maternity, or paternity if surrogacy is used for third parties. The only expressly provided for criminal legislation are found in the Article 466 of the "General Health Law", from which two prohibitions derive: to) prohibition of artificial insemination in a minor or in a person declared incapable; (b) prohibition for a married woman to be artificially fertilized without her husband's consent.
At the local level, some state laws on family law have regulations on assisted reproduction, although not all of them specifically address surrogacy.
Regarding surrogacy, the Civil Code of the State of Tabasco contains an explicit local legislative provision that allows access to surrogacy only for Mexican citizens, regardless of whether the surrogate uses her own egg, and provides for the recognition of the contracting couple's paternity. Conversely, the Family Code of the State of San Luis Potosá considers surrogacy nonexistent, thus attributing maternity to the woman who gives birth.
However, for all states where there is no explicit legislation on the matter, there is a precedent issued by the Supreme Constitutional Court, , The highest jurisprudential authority of the Mexican Federal State explains that the absence of regulation in secondary laws should not be designed as an obstacle to the recognition, protection and validity of the fundamental rights of the individual.
Therefore, with regard to children born through surrogacy, the establishment of parentage must be analyzed, always taking into account the child's best interests. With particular reference to surrogate mothers, the Constitutional Court has declared that a woman who, of her own free will, agrees to help others become parents through surrogacy does so by exercising her right to the development of her personality, considered a fundamental right. In other words, the free consent and willingness of surrogate mothers to participate in surrogacy programs must be considered an exercise of their «"personal autonomy". Therefore, in recent years, important jurisprudence has been created that is favorable to surrogacy, especially in states like Mexico City, where the parentage between children born through surrogacy and the intended parents is recognized even if they are not Mexican.
Mexico City
The jurisprudence of the Supreme Court of Justice on surrogacy practiced by heterosexual couples
In Mexico City, in recent years, numerous cases of surrogacy by heterosexual couples, and others, have contributed to the development of important jurisprudence on the subject. With particular reference to heterosexual couples, the jurisprudence of the Superior Court of Justice of Mexico City, in accordance with relevant legal provisions and constitutional jurisprudence, declares surrogacy agreements legally valid and recognizes the parent-child relationship between the children born and the intended parents. According to this jurisprudence, couples must have the right to decide freely, in an informed and responsible manner, whether to have children and how many. This forms part of their freedom to private and personal life, in which arbitrary interference by the State cannot take place. Similarly, spouses have the right to use any assisted reproduction method not prohibited by law to achieve their offspring, taking advantage of the benefits that medical science makes available, thanks to scientific and technological progress.
In Mexico City, the lack of specific regulations on how to establish the parentage of a child born through surrogacy is not an obstacle for jurisprudence. On the contrary, it is emphasized that the decision that best protects the child's interests must be adopted.
According to local courts, in the surrogacy contract between the contracting couples and the surrogate mother, who must be of legal age and capable of understanding, free consent must be expressed, as established in article Article 1803 of the Civil Code of Mexico City, provided in writing and authenticated.
Finally, on the basis of the legally executed surrogacy agreements, whose validity has been ratified by the court, the parent-child relationship between the children and the commissioning parents who have expressed their desire to be parents in the agreements must be recognized; otherwise, the right to personal identity of the minors would be violated.
The Supreme Court of Justice: a similar line of jurisprudence for single people
Along the same lines is the jurisprudence of the Courts of Mexico City, even when the surrogacy is for single parents. In fact, the Supreme Court of Justice, when ruling on the validity of surrogacy agreements between surrogate mothers and single individuals, recognized their validity if they were entered into in accordance with the law and reflected the will of the parties. The basis of this jurisprudence continues to be the aforementioned article. 4 of the The Constitution, which states that "all persons have the right to decide freely and responsibly how many children to have," using assisted reproduction techniques made available by science. In particular, it is emphasized that in order to recognize a parent-child relationship between a single contracting parent and the child born through surrogacy, it is necessary for the intended parent to express their will procreative. In order to better protect the best interests of the child and respect their personal identity, jurisprudence on the subject strengthens what global doctrine defines as «"intentional parenting", That is, the parent-child relationship must be recognized between the children and the person who He expressed his desire to be a father.
The intervention of the Supreme Court of Justice of the Nation over the surrogacy practiced by homosexual couples
Regarding surrogacy in Mexico City, the Supreme Court of Justice of the Nation, a body of constitutional importance, also issued a statement, emphasizing that the absence of secondary legislation in this area does not preclude the declaration of the legal validity of the agreements and the recognition of the resulting parent-child relationships, thus protecting and upholding the fundamental rights of the individual. Specifically, in addition to granting legal validity to surrogacy agreements when they express the will of the parties and are stipulated in compliance with the law, constitutional jurisprudence requires the recognition of the parent-child relationship between the children born and those who have expressed the desire to be parents. Only this latter decision can best protect the best interests of the child and grant all rights to minors born through this reproductive technique. It is important to specify that, in cases where the technique has been used by a same-sex couple, the Court of Justice has emphasized that the parental relationship between the children and both intended parents must be recognized, with both being included on the birth certificate. This is essential for the proper respect of the child's best interests, as it is crucial to recognize their rights, prioritize them, and formalize the parental relationship with both parties who have expressed the desire to care for them. In other words, regardless of who provided the biological material, the parents in a civil partnership as same-sex couples must be recognized as the child's parents on the birth certificate; otherwise, the child's rights would be profoundly violated.
Conclusions
It can be said that in Mexico it is now possible to become parents through surrogacy with extensive legal and medical guarantees. In fact, Mexico City is one of the world's largest metropolises, the true economic engine of the country and, in general, of all of Latin America. Therefore, it is easy for European citizens to find high-quality clinics at much lower prices than those in the United States or Canada. These factors and characteristics are making Mexico a coveted and increasingly sought-after destination for anyone wishing to become a parent, whether single, married, or regardless of their sexual orientation. This is a true social development that is radically changing an increasingly open society, which, in many cases, is proving to be more courageous and progressive than many European and Western realities.
