This study looks in turn at the state of surrogacy legislation, the social context in which it develops, and the situation of surrogates who engage in it.
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Legislation
A country with diverse legislation
As Mexico is a federal country, many powers are delegated to the state level. This is the case for surrogacy, which has no federal framework. The General Health Law only regulates the health of cells, tissues and organs, but for assisted reproduction (AMP) and surrogacy, each state can decide as it sees fit [1]. What’s more, this law only mentions artificial insemination and in vitro fertilization, but not MDS [2]. There are no specific provisions on the maximum number of oocytes to be retrieved, on donor confidentiality, or on the disposal of gametes and oocytes [3].
In 2022, only 2 states explicitly authorized surrogacy: Tabasco and Sinaloa [4].
The state of Querétaro explicitly prohibits the use of a third woman in Article 400 of the Civil Code, making surrogacy illegal [5].
The states of Coahuila and San Luis Potosi implicitly prohibit surrogacy by stating, in the former case, in article 491 of the Civil Code, that the absence of a surrogacy contract is a prerequisite for access to in vitro fertilization, and in the latter, in article 243 of the Family Code, that surrogacy contracts are null and void [6].
In 2010, the Legislative Assembly of Mexico City approved the Surrogacy Law, but it was never officially published and therefore never really came into force [7].
In the other states, there are no laws or regulations specific to surrogacy [8]. However, civil codes use the phrase “any means of assisted reproduction,” which is considered to include surrogacy, so it is not explicitly authorized but is mentioned [9].
The state of Tabasco: yo-yo legislation
The regulation of surrogacy in the State of Tabasco is contained in Title VIII, Chapter VI bis of the Civil Code [10], which was enacted in 1997[11].
A distinction is made between the pregnant surrogate who only carries the pregnancy, the surrogate who contributes her genetic material in addition to carrying the pregnancy, and the one who is considered the mother, i.e., the commissioning parents. This distinction corresponds to the distinction between gestational SDM and traditional SDM. The legislation allows both so-called “altruistic” and burdensome SDM, although there seems to be a preference for altruistic SDM [12]. The terms payment or remuneration are prohibited, but agencies know how to change the terms to fit within the law [13].
In 2016, the state of Tabasco attempted to reform its surrogacy law. The new law included limiting access to SDM to Mexican heterosexual couples whose women are unable to carry a pregnancy, requiring the use of genetic material from one of the two commissioning parents, and recourse to filiation by plenary adoption if the surrogate mother provides her own genetic material [14]. Finally, the reform included a ban on intermediary agencies [15]. On June 5, 2021, the Supreme Court of Justice of the Nation ruled that the new state law of Tabasco of 2016 was unconstitutional [16]. It found that the law discriminated against foreigners and homosexual couples by limiting access to MDS to infertile Mexican heterosexual couples [17]. For them, the prohibition of agencies and intermediaries of any kind would be a violation of labor law, commercial law, and the freedom of economic agents [18].
Sinaloa: Restrictions left untouched by the Supreme Court
In the State of Sinaloa, Chapter V of the Family Code regulates surrogacy in the same way as assisted reproductive techniques [19]. In particular, article 283 recognizes surrogacy as such [20]. In the other articles, a distinction is made between partial and total MDS, as well as altruistic and burdensome [21]. Access to MDS is allowed to couple whose women are unable to have children due to physical impossibility or medical contraindication [22]. The woman must present a medical certificate attesting to her condition, and the couple must also have Mexican citizenship [23], which excludes international clients, unlike in the state of Tabasco. To become a surrogate mother, the following requirements must be met: the woman must be at least twenty-five and no older than thirty-five years old, have already given birth to her child in good health, be in good psychological and mental health, and not be addicted to alcohol, drugs, tobacco, or other substances [24]. She must also prove that she has not been pregnant in the past year and has not been a surrogate mother more than twice [25]. Her family environment must be stable, free of violence, and in economic and social conditions favorable to the development of the fetus. This should be verified by a visit to the surrogate mother’s home by the staff of the clinic treating the MDS [26]. The MDS, which is recognized as a service, is carried out by means of a contract, which must include the date and place of signing, between the commissioning parents, the surrogate mother, a notary and the head of the medical establishment in charge of the procedure [27]. Article 296 of the Family Code allows the surrogate mother to sue the commissioning parents for medical expenses if the pregnancy adversely affects her health [28]. Donors of sperm and/or oocytes used in MDS are also prohibited from claiming parentage [29].
Federal initiatives: from regulators to potential abolitionists?
In 2016, Senator Mely Romero launched an initiative at the federal level to regulate MDS[30]. This initiative included restricting access to MDS to heterosexual couples who are citizens of Mexico and have infertility problems[31]. The framework would have to be completely altruistic and intrafamilial[32]. The initiative also included a ban on cloning, interspecies implants for reproduction, research or early embryo splitting[33]. It provided for a sentence of 6 to 17 years imprisonment for cases of surrogacy carried out through economic or physical coercion, or taking advantage of women’s poverty and ignorance. The same penalty should apply to organizations or individuals who promote surrogacy through advertising or profit from the practice[34]. A surrogate mother should not be involved in more than two MDS. However, this initiative was not followed up.
In 2017, two initiatives were launched at the federal level, one by Deputy Patricia Sanchez and the other by Senator Angélica de la Pena. They sought to criminalize coercive SDM, particularly through violence, deception or exploitation of vulnerable situations[35].
Following a forum on the subject organized by the Federal Senate on May 16, 2022[36], several senators, with the support of feminist associations, took the initiative to prohibit surrogacy in the reforms entitled “Prevention, Punishment and Eradication of Crimes of Human Trafficking” and in the General Health Law[37]. This new initiative was proposed by Federal Deputy Beatriz Rojas, supported by Senator José Narro Céspedes and Senators Marcela Mora, Blanca Estela Piña Gudiño and Antares Guadalupe Vázquez Alatorre[38]. We will continue to follow the progress of this initiative.
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MDS: Situation of women and children & human trafficking
As in other countries where MDS is legal, the majority of surrogates are poor women or in a much lower socio-economic situation than the commissioning parents[39]. In addition, Tabasco is the state with the 5th highest poverty rate in the country[40]. Risks of cancer following multiple surrogate pregnancies have been noted by one researcher[41].
Migrant women: the largest reservoir
MDS in Mexico also relies on internal migration of women, as many women are recruited who are not originally from the states of Tabasco and Sinaloa, where the practice is legal[42]. Many of these internal migrations are linked to violence in certain states of the country, such as Guerrero[43]. However, it is also possible to highlight the presence of surrogate mothers who have migrated to Mexico from Latin American countries[44]. It doesn’t matter where the IVF procedure is performed, as long as the birth takes place in one of the two states where MDS is legal[45].
It is possible to find many agencies that offer cross-border programs[46] where the embryo implantation is organized in Mexico to keep the costs down, but the birth takes place in the U.S., where the transfer of filiation to a newborn with American citizenship takes place. In some cases the surrogate mothers are American, in others they are Mexican but have visas for the United States.
Coercion & Crime
Partners and husbands are also regularly involved in a kind of “reproductive pimping”. They have the most to gain when their partner or wife becomes a surrogate mother. The woman stays at home, doesn’t work, so she can supposedly take care of the children and the house, and they can also make money[47].
Surrogacy has given rise to criminal trafficking networks, including notaries, registrars, law firms and hospital staff[48]. These groups use illegal contracts to make the surrogate disappear from the child’s civil status and prevent her from claiming parentage.
Special cases: a cruel reality
An FBI investigation has revealed that a young American woman was involved in child trafficking and fraud by setting up an agency for MDS. Lily Frost, who responded to an advertisement for egg collection, set up her own business as an egg provider and then developed her surrogacy agency by matching potential surrogates with clients. Sensitive to the amount of money clients were spending in the United States, she decided to recruit Mexican surrogates. Some were brought to the U.S. for embryo implantation and delivery. Clients were guaranteed success no matter how many times they tried. But the clients complained that they didn’t have a child, and the money seemed to disappear into Frost’s hands. Then came mishap after mishap: poor medical care for the surrogates, with cases of pre-eclampsia and infections from sexually transmitted diseases. Frost lied to his clients about the use of the money left in escrow accounts and about the fate of the surrogates. Mexican doctors complained that they were not paid for their procedures. Surrogate mothers were recruited mainly from poor social backgrounds and were unaware of the risks involved. They did not receive proper care because Frost kept the money, did not pay the clinics, and even recommended that surrogates not follow doctors’ advice to rest (a loss of earnings for the surrogate to be compensated by the clients[49]).
The co-president of ICAMS, Berta O. Garcia, also heard the testimony of a surrogate mother who said she was deceived by Frost, and who investigated surrogacy in Mexico[50]. He cited the case of a surrogate mother who had to give birth in the street without medical assistance because the agency had not paid the hospital fees, and whose child died. Another woman suffered the same fate, giving birth in a dirty shack to a baby girl who was left hemiplegic. He also reported the case of a surrogate mother recruited for a cross-border program who, when she was transferred to California, not only did not receive the agreed payments, but had to pay the hospital fees and the return flight herself. He also heard of cases where the commissioning parents abandoned their project when the pregnancy was too far advanced for an abortion, cases of babies abandoned because of their medical condition, women infected with HIV, others left to their fate with a dead fetus.
Journalist Melissa Amezcua told the story of Sandra, who became a surrogate mother at the age of 22, under the legal age, at the request of a young woman she met through word of mouth. Although Sandra lived in the state of Sinaloa, where MDS is legal, she signed a direct contract with the commissioning parents that was not legal. She was not paid for the entire period of taking hormones until the embryo was implanted and the pregnancy test was positive. The commissioning parents paid for her to travel to Guadalajara, in the state of Jalisco, for the embryo transfer. The doctors warned her of the possibility of being pregnant with twins, but the contract, which provided for only one child, was not modified. During her pregnancy, the commissioning parents gave her a refrigerator, television, bedroom furniture, and even a down payment on a new house, creating a sentimental bond between the two women. A month before her due date, Sandra had to undergo a C-section because she developed life-threatening pre-eclampsia. The commissioning parents requested that her name be registered as the mother of the twins to avoid the complexities of an illegal contract. Sandra had to surrender the newborns to the commissioning parents and never saw them again, developing postpartum depression. Sandra received no psychological help or legal advice. The commissioning parents gave her the rest of the 180,000 pesos and provided her with breast milk for an additional 3,000 pesos. After a few weeks, she was able to see the twins at a notary appointment, but because she cried when she saw them, the commissioning parents wouldn’t let her see them again. Sandra now follows the progress of the twins, whom she considers her daughters, through social networks. The hormone treatments have left their mark on her[51].
Arely, a Colombian migrant who arrived in Mexico unable to find work, became a surrogate mother at the request of a friend. Without a contract, but with the promise of $1000 at the beginning of the pregnancy and $600 per month until the birth, she went to Mexico City for in vitro fertilization before joining a surrogacy house in Cancun. She had a twin pregnancy, but the fetuses died in her luteus after 5 months. She did not receive any care, nor was she paid the agreed amount. Without access to her medical records, she does not know if she can still have children, and without a contract, she has no material evidence to file a possible lawsuit[52].
Rodolfo, born disabled, was abandoned by the commissioning parents. The surrogate mother and her husband took custody of him. After a year, the commissioning parents returned to reclaim him, using threats and deception to pressure the surrogate’s family[53].
In 2017, the Washington Post revealed the story of a young Mexican woman who was hired as a surrogate by a couple in 2012. They took her illegally to Florida. In the couple’s home, she was inseminated by hand and subjected to various forms of abuse and violence[54].
Egg collection: almost total freedom
With regard to oocyte collection and storage, and the anonymity of the providers, both private and public clinics have arbitrary and potentially discriminatory practices, since the legislation is not national and depends entirely on the individual states, which themselves are not explicit on the subject[55].
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MDS & Social and Economic Context
The surrogacy industry in Mexico hovers between legality and illegality. Regulation, where it exists, does not reduce the practice and even encourages exploitative systems.
Clinics in different regions
In the state of Tabasco, no clinic had a license for medically assisted reproduction, yet the Early Institute was aware of 16 MDS contracts during this period, all ratified before a notary[56].
Agencies and clinics are not only found in states where MDS is legal. In fact, the conception and creation of embryos is authorized throughout the country, so that the initial phase of surrogacy can be carried out without limit. Most clinics are located in Villahermosa, Cancun, Mexico City and Puerto Vallarta[57].
Tijuana is popular with foreign clients because it is close to the US border[58] and makes it easier for the surrogate to travel to the US for the birth[59].
Implications of the Supreme Court decision
By citing discrimination against foreigners and interference with free trade as reasons for declaring Tabasco’s law unconstitutional,[60] the Supreme Court also recognized that surrogacy is a business, an industry, and not a reprehensible activity like human trafficking or exploitation.
This recognition is in line with the way MDS is promoted in Mexico, especially in Cancun, as a form of beach tourism in addition to reproductive tourism[61].
An untransparent trade
At its peak, there were around 200 births per month in the state of Tabasco, where the surrogate mother receives between £32,000 and £64,000[62]. Unfortunately, these figures do not appear in any official documents, as clinics, agencies and even notaries do not keep registers or databases[63].
Social Stigma & Health Risks for Surrogates
Despite legalization and the way agencies and clinics market MDS, there is still a social stigma attached to women who become surrogate mothers[64]. These women are often accused of selling their bodies or their children, and often have to hide or lie to their families. Agencies and clinics set up accommodation for surrogate mothers near their offices, where they can monitor their behavior, check what they eat, control their activities, etc., according to the terms of their contracts[65]. The health of surrogate mothers is given very little consideration, as the 2014 survey by the Early Institute showed that implanting more than 3 embryos is common practice to multiply the chances of pregnancy[66], despite the risk of twin pregnancies. If too many are implanted, embryo reduction, or selective abortion, is performed. Some contracts prohibit abortion even if the surrogate mother’s life is in danger[67].
Poverty drives sales
It is not uncommon for women to offer themselves as surrogates on social networks, through websites, Facebook groups or Whatsapp chat groups[68]. The vast majority of these women do so in the hope of being paid, with the altruistic argument only really present to alleviate moral issues.
A targeted clientele
Mexico is also a popular destination for gay men[69]. In fact, many other countries where surrogacy is legal, whether commercial or altruistic, and where costs are lower than in the United States, reserve surrogacy for heterosexual couples, which is not the case in the state of Tabasco, especially after the Supreme Court decision.
A practice with a hint of liberal eugenics
Last but not least, the use of Mexican surrogates by clients who are mainly American, European or Australian is part of a context in which women from underprivileged countries are exploited by industrialized countries. The surrogate mother is considered unimportant, even interchangeable, regardless of the color of her skin, while the characteristics of the egg donor are scrutinized with the utmost attention to her origin, level of education, physical or intellectual performance[70] . They often come from white communities in South Africa, Ukraine or Georgia[71]. Here we find elements of racism and eugenics, which are forbidden but remain rooted in the habits and imaginations of the clients[72].
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Despite bans in three states, Mexico is a popular destination for foreigners. A veritable industry has developed there, exploiting vulnerable women, involving numerous criminal groups, but also legal actors such as notaries and lawyers, clinic and hospital agents, as well as brokers who make very high profits by exploiting women, but also by defrauding clients. The initiative to ban MDS contracts at the federal level is a step in the right direction, but we’ll have to be vigilant, especially with a Supreme Court that recognizes the industry.
[1] de Alba-Ulloa, J., et Tarasco, M. « La bioéthique au Mexique : histoire et derniers développements », Droit, Santé et Société, vol. 1, no. 1, 2017, pp. 67-79. ; Fulda, I., Tamés R. “Surrogacy in Mexico” in Davies, M. (eds) Babies for Sale? Transnational Surrogacy, Human Rights and the Politics of Reproduction, Zed Books, 2017, pp. 262-275
[2] de Alba-Ulloa, Jessica, et Tarasco, M., op cit.
[3] Fulda, I., Tamés, R., op cit.
[4] Fulda, I., Tamés, R. op cit ; de Alba-Ulloa, J., et Tarasco, M., op cit.
[5] Espejo Yaksic, N., Fenton-Glynn, C., Lathrop Gómez, F., Scherpe, J.M. “La gestación por subrogación en México”, La gestación por subrogación en América Latina, Suprema Corte de Justicia de la Nación, 2022
[6] de Alba-Ulloa, J., et Tarasco, M., op cit.
[7] “Panorama de la maternidad subrogada en México” Early Institute pour le Haut Commissariat des Nations Unies aux droits de l’homme ; de Alba-Ulloa, J., et Tarasco, M., op cit.
[8] Fulda, I., Tamés, R., op cit. ; de Alba-Ulloa, J., et Tarasco, M., op cit.
[9] de Alba-Ulloa, J., et Tarasco, M., op cit.
[10] Espejo Yaksic, N., Fenton-Glynn, C., Lathrop Gómez, F., Scherpe, J.M., op cit.
[11] Fulda, I., Tamés, R., op cit.
[12] ibid
[13] https://www.theguardian.com/world/2014/sep/25/tales-of-missing-money-stolen-eggs-surrogacy-mexico
[14] “Panorama de la maternidad subrogada en México” Early Institute pour le Haut Commissariat des Nations Unies aux droits de l’homme
[15] ibid
[16] https://www.zonadocs.mx/2021/06/13/maternidad-subrogada-en-mexico-que-aprobo-la-suprema-corte/
[17] https://www.elsoldetlaxcala.com.mx/analisis/resiliencia-gestacion-subrogada-en-mexico-7811014.html ;https://www.zonadocs.mx/2021/06/13/maternidad-subrogada-en-mexico-que-aprobo-la-suprema-corte/
[18] https://www.elsoldetlaxcala.com.mx/analisis/bebes-mercancia-no-inaceptable-8608001.html
[19] Espejo Yaksic, N., Fenton-Glynn, C., Lathrop Gómez, F., Scherpe, J.M., op cit.
[20] de Alba-Ulloa, J., et Tarasco, M., op cit.
[21] ibid
[22] ibid
[23] ibid
[24] Martínez-Martínez, V. L. “Maternidad subrogada : Una mirada a su regulación en México” Dikaion, 24-2, 2015, pp. 353-382.
[25] ibid
[26] ibid
[27] de Alba-Ulloa, J., et Tarasco, M., op cit.
[28] Martínez-Martínez, V. L., op cit.
[29] ibid
[30] “Panorama de la maternidad subrogada en México” Early Institute pour le Haut Commissariat des Nations Unies aux droits de l’homme
[31] de Alba-Ulloa, J., et Tarasco, M., op cit.
[32] ibid
[33] ibid
[34] ibid
[35] “Panorama de la maternidad subrogada en México” Early Institute pour le Haut Commissariat des Nations Unies aux droits de l’homme
[36] https://www.eluniversal.com.mx/nacion/senador-narro-y-colectivos-de-mujeres-proponen-prohibir-gestacion-subrogada
[37] https://www.jornada.com.mx/notas/2022/06/21/politica/lanzan-iniciativa-para-prohibir-los-vientres-de-alquiler/
[38] https://www.semmexico.mx/integrantes-del-senado-apoyaran-iniciativa-para-prohibir-la-gestacion-subrogada/
[39] Fulda, I., Tamés, R., op cit.
[40] “Panorama de la maternidad subrogada en México” Early Institute pour le Haut Commissariat des Nations Unies aux droits de l’homme
[41] https://billieparkernoticias.com/trata-corrupcion-y-danos-fisicos-el-negocio-de-los-vientres-de-alquiler-en-tabasco/
[42] https://cimacnoticias.com.mx/2021/04/05/83932
[43] Fulda, I., Tamés, R., op cit.
[44] ibid
[45] https://www.theguardian.com/world/2014/sep/25/tales-of-missing-money-stolen-eggs-surrogacy-mexico
[46] https://www.surrogacymexico.com/faq/what-are-cross-border-surrogacy-packages-offered/ ; http://mfcsubrogacion.com/cross-border-program/ ; https://ivf.ilaya.com/fr/le-nouveau-programme-de-gpa-aux-etats-unis/
[47] https://billieparkernoticias.com/trata-corrupcion-y-danos-fisicos-el-negocio-de-los-vientres-de-alquiler-en-tabasco/
[48] https://www.semmexico.mx/integrantes-del-senado-apoyaran-iniciativa-para-prohibir-la-gestacion-subrogada/
[49] https://www.latimes.com/world-nation/story/2022-07-10/she-promised-customers-babies-on-the-cheap-using-surrogates-in-mexico-what-could-go-wrong
[50] https://www.youtube.com/watch?v=NJx7MoBf9EA&feature=youtu.be
[51] https://interactivo.eluniversal.com.mx/2019/maternidad-subrogada/sandra.html ; https://interactivo.eluniversal.com.mx/2019/maternidad-subrogada/index.html
[52] Fulda, I., Tamés, R., op cit.
[53] “Panorama de la maternidad subrogada en México” Early Institute pour le Haut Commissariat des Nations Unies aux droits de l’homme
[54] https://www.washingtonpost.com/news/morning-mix/wp/2017/04/01/smuggled-to-the-u-s-to-be-a-surrogate-one-woman-claims-she-was-abused-and-used-for-her-womb/
[55] Fulda, I., Tamés, R., op cit.
[56] “Panorama de la maternidad subrogada en México” Early Institute pour le Haut Commissariat des Nations Unies aux droits de l’homme. https://earlyinstitute.org/wp-content/uploads/2019/02/EMFR_Early-Institute_TEXTO_MAPAS-corregidos.pdf
[57] Fulda, I., Tamés, R., op cit.
[58] https://udgtv.com/noticias/los-vientres-alquiler-una-realidad-mexico-genera-ganancias-millonarias/
[59] https://www.elsoldetlaxcala.com.mx/analisis/resiliencia-gestacion-subrogada-en-mexico-7811014.html
[60] https://www.elsoldetlaxcala.com.mx/analisis/bebes-mercancia-no-inaceptable-8608001.html
[61] https://www.theguardian.com/world/2014/sep/25/tales-of-missing-money-stolen-eggs-surrogacy-mexico
[62] https://www.dailymail.co.uk/news/article-3559777/Renting-wombs-family-business-Four-sisters-family-make-10-000-year-having-babies-gay-European-couples-Mexico-s-secret-surrogacy-trade.html
[63] “Panorama de la maternidad subrogada en México” Early Institute pour le Haut Commissariat des Nations Unies aux droits de l’homme ; Fulda, I., Tamés, R., op cit.
[64] https://www.theguardian.com/world/2014/sep/25/tales-of-missing-money-stolen-eggs-surrogacy-mexico ; https://interactivo.eluniversal.com.mx/2019/maternidad-subrogada/index.html
[65] https://www.theguardian.com/world/2014/sep/25/tales-of-missing-money-stolen-eggs-surrogacy-mexico
[66] https://interactivo.eluniversal.com.mx/2019/maternidad-subrogada/index.html
[67] Fulda, I., Tamés, R., op cit.
[68] https://www.publimetro.com.mx/mx/noticias/2014/05/14/madres-subrogadas-ofrecen-en-renta-su-vientre-sin-regulacion.html?page=1&word=noticias&blog=mx&kind=category ; https://www.reproduccionasistida.org/entrevista-vientre-de-alquiler-en-estados-unidos/ ; https://cimacnoticias.com.mx/2021/04/05/83932
[69] Schurr, C. “From biopolitics to bioeconomies : the ART of (re-)producing white futures in Mexico’s surrogacy market” Environment and Planning D: Society and Space, 2016 0(0) pp. 1–22
[70] ibid
[71] ibid
[72] ibid