Thinking of surrogacy in Colombia or Mexico? Make sure you’ve considered the legal issues and more.
Working at the forefront of UK surrogacy law, we have seen various surrogacy destinations rise and fall in popularity over the years. In 2021, the newest surrogacy hot spots we are being asked about are Colombia and Mexico in South America. Most of the intended parents contacting us for advice about Colombian and Mexican surrogacy are gay dads, something which is perhaps not surprising given that the options for same-sex parents overseas are much more limited than for different-sex parents.
So here are our top tips if you are considering surrogacy in Mexico or Colombia (or any other emerging destination).
Don’t just rely on what an agency or clinic tells you about whether surrogacy is legal in the place where your child will be born. And bear in mind that surrogacy not being illegal does not mean there is a secure legal framework supporting it. Consult your own local lawyer who will advise you independently. Ask them: Are there any laws which prohibit surrogacy in the place where your child will be born? If there is no law (which is common in emerging surrogacy destinations), who will the law treat as legal parents when your child is born? Will you be recorded on the birth certificate? What legal processes do you need to follow? How long will they take? Can you be honest with the authorities about your situation and sexual orientation?
There is risk involved in a surrogacy arrangement where there is no established legal framework, particularly in poorer countries. We have seen a pattern in the past (for example in India, Thailand, Nepal and Cambodia) where surrogacy services became popular and then there was a sudden crackdown to make it illegal. The parents and surrogates caught in the middle of the law change were in an impossibly difficult and stressful position, and faced significant difficulties bringing their children home.
It is also critically important to think about whether things are managed ethically, whether your surrogate will be safe and well supported, and whether you will be able to build a relationship with her so that your child ultimately has good information about their birth story and confidence that it was a positive one.
Surrogacy is a long and expensive process, and you need to be confident that the professionals you are working with will honour their promises and support you all the way through. You also need to be confident that your surrogate was appropriately screened and will be cared for properly throughout the process. Go and see the agency you are considering engaging if you can, take up references and do as much homework as possible. Try and talk to parents who have completed the process and come home, not just those at an early stage.
Some of the most distressing cases we see involve parents stranded with a newborn who have hit hurdles and delays getting birth certificates and passports. If you are British you are likely to be able to get a British passport for your baby, but the process can be lengthy and the process will vary depending on biology, your surrogate’s marital status and what legal documentation is available in the country of birth. We can advise you on your particular circumstances and what you will need to do.
Even if you are registered as legal parents on your baby’s birth certificate in the place where he or she is born, UK law will still treat your surrogate as the legal mother and, if she is married, will treat her husband (or wife) as the father. To make sure your family is legally secure in the UK, you will also need to apply to the family court for a parental order after the birth. We can advise you on what the court process involves but also what the court will ask you, so that as you go through the process you make the right decisions and gather the right information.
Many of the gay dads contacting us for advice want to know if we have experience of surrogacy in Mexico or Colombia. We deal with hundreds of surrogacy cases each year and, while we do have some limited experience of Mexican and Colombian surrogacy, it is important to stress that these are newly-emerging surrogacy destinations in which surrogacy is not yet common, tested or well established for UK parents. They may work, but care is needed, and you should consider whether you want to be the parents to test the system.