Technological advancements in the field of assisted human reproduction, with a focus on infertility, have revolutionized the most important unit of society, which is the family, and the preconceived idea of how it is “naturally” formed. An example of this is gestational surrogacy.
But what is gestational surrogacy? It is a heterologous assisted reproduction technique through which a woman, exercising her reproductive autonomy, agrees to undergo the transfer of an embryo created ex vivo with male and female gametes from the intended parents, whether their own or donated, and agrees to gestate it with the dual purpose of helping them overcome their inability or impediment to conceive children on their own and mutually improving their quality of life.
“Surrogacy is a reality in Mexico, and this practice is not going to disappear. On the contrary, there is a growing trend that makes it imperative to develop a solid regulation that protects human rights.”
Sofía Pérez
Who participates in gestational surrogacy?
On one hand, there are the intended parents, who, due to physical or biological incapacity, have the procreative will—clear and manifest intention—to become parents of a baby. On the other hand, there is the gestational woman, who will carry an embryo of the intended parents but without procreative will.
Can anyone participate in a gestational surrogacy process?
The answer is NO.
The complexity of the process requires that individuals wishing to initiate a gestational surrogacy process meet rigorous legal, clinical, and social standards to ensure they are physically, mentally, emotionally, and financially prepared to embark on this journey. Failing to do so would increase the risk of affecting the physical and emotional well-being, as well as the economic aspect, of the individuals involved.
Particularly, regarding the intended parents, they must be analyzed as individuals who are of legal age, mentally sound, living in positive environments free from family violence, and possessing the financial means to cover the financial burdens associated with a pregnancy from beginning to end.
In the case of gestational women, access standards to the process must be strict to confirm that the gestational person has the ideal health conditions to carry out the reproductive task, thereby avoiding jeopardizing their overall well-being and, consequently, the well-being and healthy development of the fetus. Specifically, and through self-regulation, it should be confirmed that the woman intending to gestate:
- Is of legal age and is in full possession of her mental faculties;
- Is physically, mentally, and emotionally healthy;
- Is a mother of at least one living child to verify her understanding of the implications of gestation;
- Lives in a healthy and positive environment for pregnancy;
- Is financially independent;
- Does not have any condition that puts her life or the development of the embryo/fetus at risk
How do the parties know their rights and obligations before, during, and after gestation?
Having established that both the intended parents and the gestational women meet these minimum standards for admissibility in the gestational surrogacy process, the parties enter into a gestational surrogacy contract.
The purpose of this agreement is to express the procreative will of the intended parents while also regulating the obligations and rights between the parties regarding gestation and prenatal care.
“Individuals who wish to initiate a gestational surrogacy process must meet rigorous legal, clinical, and social standards to ensure that they are physically, mentally, emotionally, and financially prepared.”
How do the parties know their rights and obligations before, during, and after gestation?
Having established that both the intended parents and the gestational women meet these minimum standards for admissibility in the gestational surrogacy process, the parties enter into a gestational surrogacy contract.
The purpose of this agreement is to express the procreative will of the intended parents while also regulating the obligations and rights between the parties regarding gestation and prenatal care.
It is not the spirit of this type of contract to establish the filiation of a baby, as this is not permitted and, if established, it would be void under the Mexican legal framework.
But if the filiation of a baby with their parents is not established, how is it determined?
The First Chamber of the Supreme Court of Justice of the Nation, in the amparo appeal 553/2018, stated that it is the duty of a judge to establish the filiation of a minor born through the technique of surrogacy, given the absence of specific regulation.
“THE SUPREME COURT OF JUSTICE AFFIRMS THAT FILIATION IS DETERMINED BY THE PROCREATIVE WILL.”
This is because the right to identity and protection of their best interests require determining their corresponding filiation and the rights derived from it, such as support and succession rights, as well as receiving care, education, affection, and everything necessary for their proper development.
Furthermore, it stated that in these cases, filiation is established based on the procreative will,
meaning the intention to want to be the mother or father of the unborn baby, as demonstrating a biological link is not an indispensable requirement to establish the filiation of a child.
Although there is no special law regulating gestational surrogacy in Mexico City, there are various constitutional, civil, criminal, and health regulations scattered throughout the Mexican legal framework that currently make this complex and multidisciplinary practice possible. In addition, the various pronouncements of our Supreme Court on this matter show a strong inclination toward acceptance.
However, this is not enough, as a system of rules is needed to ensure a safe and respectful gestational process from start to finish for gestational women. It must also ensure that individuals who are incapable of gestating on their own or as a couple can form a family through the technique of gestational surrogacy and that their filiation with their baby will be recognized immediately after birth.
Gestational surrogacy is a reality in Mexico, and this practice is not going to disappear. On the contrary, there is a growing trend that makes it imperative to develop a solid regulation based on scientific foundations, ethical principles, and respect for the human rights of the individuals involved. Only in this way can potential risks in this difficult and complex process be minimized, as the lack of regulation encourages malpractices and secrecy that endanger the lives of many women and the human dignity of babies born through this assisted reproductive technique.
