Don't Head South of the Border to Have a Baby


Jun 18, 2024By Fred Silberberg - Family & Assisted Reproductive Technology Law

I recently received a call from a potential client.  “Linda” told me that she and her husband were going to have a child using surrogacy.  She asked if I could explain the process to her and assist her. 
No sooner did I begin explaining the process than Linda interrupted me to tell me that she and her husband already had frozen embryos and a surrogate in Mexico.
I explained to Linda that I could not help her from here. In my talk with her,  I learned that she knew nothing about the surrogate that was to carry her baby, not her name, nor where she lived. She did not know anything about the medical care the surrogate would receive, nor where the baby would be delivered.  Linda apparently relied upon the representations of someone claiming she could inexpensively have a child in Mexico.  Excited at the prospect, she and her husband had already gone to Mexico and created their embryos. 
I told Linda that she needed a lawyer in Mexico to ensure that everything was being done correctly according to Mexican law, and I suggested she consult with an immigration lawyer here to make sure that she followed all the required procedures to bring her child to the U.S.   Beyond that, I could not assist her further.
Yes, fertility treatments and surrogacy are expensive in the US.  But heading to Mexico to save money with the process isn’t something that anyone should consider.  The legality of surrogacy in Mexico is questionable.  Laws and procedures vary from state-to-state. Parents have gotten stuck in Mexico both because of medical complications affecting their children born through surrogacy in Mexico, and because of legality issues preventing them from being able to leave the country with their newborn children.  Just last year, the father of a child born to a New Jersey couple in Mexico City got stuck there because his child could not leave due to both medical and legal complications.  [1]  This is not an isolated incident. The FBI has launched an investigation into fraud regarding an American woman who took money from couples claiming she could arrange surrogacies in Mexico[2].  In fact, the US Embassy warns against using surrogates and agencies in Mexico due to the numerous risks that intended parents and their newborn children will face. [3]
The desire for a family is very strong for many who cannot bear their own children. There are numerous operators promising an easy, less expensive way to create or expand a family through surrogacy in Mexico and for Californians especially, the option to cross the border seems viable.  Don’t believe these people.  Surrogacy is both a medical and legal process. The standards in Mexico on both fronts are not what they are in the U.S.  The age-old adage of “penny wise and pound foolish” certainly applies here.