Thinking of surrogacy in Colombia or Mexico? Make sure you’ve considered the legal issues and weighed the risks carefully

Mexico and Colombia are emerging surrogacy destinations for UK parents, which appear to be in a sharp period of growth. There remains a limited track record (bear in mind only 5 parental orders were recorded for children born in Mexico up to 2022) but they have become attractive due to rising costs in the US, the ongoing war in Ukraine, and surrogate shortages in the few other countries (such as Georgia and Canada) where surrogacy is legal. 

However, it is important to understand that surrogacy in Mexico and Colombia is not just like US surrogacy but cheaper – it comes with additional challenges that need to be navigated, and with significantly more risk.

1. Make sure you’ve checked out the legal process in the place where your child will be born

Don’t just rely on what an agency or clinic tells you, particularly about timescales. Do your own due diligence and get independent local legal advice. Bear in mind that surrogacy not being illegal does not mean there is a secure legal framework supporting it, or that navigating the process will be predictable or easy. There is currently no formal law regulating surrogacy in either Mexico or Colombia, so getting the documentation you need (including birth certificates and passports) relies on cooperative judges and officials, making the legal process variable and unclear.

Ask your lawyer: Are there any laws which prohibit surrogacy in the place where your child will be born? If there is no law regulating surrogacy in the particular locality (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, and how reliable and well established are they? Can you be honest with the authorities about your situation and sexual orientation?  And crucially, what real experience does your lawyer have on the ground of navigating these processes?  How long do they actually take, and are they vulnerable to the whims of individual judges or local officials who might be obstructive when the time comes?

Almost all the intended parents we have supported with children born in Mexico or Colombia have experienced delays and post-birth difficulties they did not anticipate. The podcast ‘Stuck in Mexico’ (from US LGBTQI podcast If Ovaries Could Talk) from one of our former clients is a good example of the experience we have seen on the ground.

2. Think about the risks, ethics and long term welfare issues for your child

It is 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. Of the arrangements we have seen in Mexico and Colombia, most parents have been able to form a positive and direct relationship with their surrogate (and egg donor). However, the approach of different agencies varies so choose carefully.

There is always risk involved in a surrogacy arrangement where there is no established legal framework. We have seen a pattern in the past (for example in India, Thailand, Nepal, Cambodia and most recently in Argentina) 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. There is very little you can do to prevent this happening, but before going ahead think about how you would manage if this happens, and whether it is a risk you are willing to take. There may be an enhanced risk of sudden law change in a country where surrogacy has grown very rapidly without regulation (as seems to be happening in Mexico at the moment), particularly if some kind of scandal emerges. Bear in mind that surrogacy is a long process and you need the law to work for you after your child is born.

Other risks need to be considered too, including the risk of navigating corruption and security issues while staying for an extended period with a new baby after the birth. If you can, talk to other parents who have been through the process recently to get a real picture of what it is like to have a baby through surrogacy in Mexico or Colombia.

3. Do as much due diligence as you can

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 with that agency and come home to the UK, not just those at an early stage.

4. Have a plan for bringing your baby home

Some of the difficulties we have seen 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 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.

Given our experience of surrogacy in Mexico and Colombia we would not advise parents to rely on being able to get a Mexico/Colombian passport to bring their babies home to the UK, and to have an alternative strategy (such as a UK passport). 

5. Know what you need to do to secure your status as a family in the UK

Even if you are registered as legal parents on your baby’s birth certificate in Mexico or Colombia, UK law will still treat your surrogate as the legal mother and, if she is married, will treat her husband (or wife) as the other parent. 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 manage more parental order applications than any other UK law firm every year, and have extensive experience helping parents navigate the process pratically and efficiently. 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. We also offer a range of services for legal representation to suit different budgets.

So should we choose surrogacy in Mexico or Colombia?

The decision about the right path to build your family is a very personal one. It will depend on your budget, your orientation to risk, whether you are willing to spend an extended period of time abroad with a newborn baby, the kind of relationship you want to have with your surrogate (and if relevant your egg donor), and the type of professional support and medical care you want to have through your journey, as well as many other personal factors. We support parents with resolving the UK legal issues after surrogacy in every possible destination around the world, and want to make sure that everyone is fully informed before making such an important decision.