Surrogacy, ART and DNA Testing

Although surrogacy agencies/clinics claim surrogacy is legal in Mexico and actively promote Mexico as a destination for international commercial surrogacy, there is no legal framework for foreigners or same-sex couples to pursue surrogacy in Mexico. As a result, surrogacy agreements between foreign or same-sex intending parents and gestational mothers are not enforced by Mexican courts.

If you decide to pursue parenthood in Mexico via assisted reproductive technology (ART) with a gestational mother, be prepared for long and unexpected delays in documenting your child’s citizenship. Make sure you understand Mexican law, which recognizes the gestational mother as the child’s legal parent with full parental rights and mandates that the gestational mother be listed on the Mexican state-issued birth certificate. Be aware that individuals who attempt to circumvent local law risk criminal prosecution. Mexican authorities have made arrests stemming from surrogacy cases.

Information from the U.S. Department of State regarding whether a child born abroad via ART/ surrogacy may or may not have acquired U.S. citizenship at birth can be found at:

U.S. Citizens Considering the Use of Assisted Reproductive Technology (ART) Abroad

 

Determining U.S. Citizenship

Many, but not all, children born abroad to a U.S. citizen parent are eligible to be documented as U.S. citizens. For a child born through surrogacy to acquire U.S. citizenship and obtain a U.S. passport, sufficient proof must be submitted showing:

1) A genetic or gestational relationship between the newborn child and a U.S. citizen parent. The genetically or gestational related parent must be a U.S. citizen at the time of the baby’s birth to be eligible to transmit citizenship. To accomplish this, you must present all documents related to the contracted ART service, and child’s conception and birth. If the consular officer is not convinced of the biological relationship, DNA testing may be suggested.

2) The U.S. citizen parent(s)’ physical presence in the U.S. according to the requirements of U.S. immigration law. Depending on your individual circumstances, you may have to prove up to five years of physical presence in the United States in order for your child to acquire U.S. citizenship. The rules regarding physical presence are very specific, and you should review them carefully.

In cases involving Assisted Reproductive Technology (ART), including surrogacy, clear evidence of the child’s genetic or gestational relationship to the transmitting U.S. citizen parent is required in addition to the other transmission requirements explained here, and DNA testing may be suggested to confirm the qualifying relationship. All costs and expenses associated with DNA testing must be borne entirely by the passport applicant and his/her family. Often, individuals underestimate the time required for determining their newborns’ eligibility for U.S. citizenship, obtaining their passports, and the potential for complications and delays in this process. Straightforward cases can take at least three to four weeks, while unusual or difficult cases can take months. While your case will be processed as quickly as possible, it is important to keep in mind that this process is unpredictable by nature and that cases cannot be adjudicated or reviewed ahead of the submission of the formal application and fee payment.

It is important to make contact with the U.S. Embassy as early in the process as possible so we can help guide you through the steps involved. Please complete application form DS-2029 (PDF, 174K) and email it to MexicoCityPassport@state.gov, for preliminary review by our staff. Please provide some information about your specific situation (i.e. U.S. citizen’s genetic relationship to the child, use of egg/sperm donor, clinic being used, baby’s due date, etc.). Please be assured we will treat all information you provide with discretion and sensitivity.

Once the baby has been released from the hospital and you have the official Mexican birth certificate and all the other required documentation (click here (PDF, 235K) for a full list of documents) please contact the U.S. Embassy to schedule your appointment by emailing us at MexicoCityPassport@state.gov. Please notify us via e-mail if you need to re-schedule your appointment.

 

On the day of the appointment, you will come to the U.S. Embassy. Applicants should arrive at the ACS Unit 15 minutes prior to their appointment. You will go through an airport-style security screening process. For a list of items you may/may not bring with you, click here. Note you may be allowed to bring in small amounts of milk, baby formula, baby food, and diapers, all subject to inspection. If you plan to bring someone with you to help with the baby, please be sure s/he has photo identification to show the guards. Please be prepared to spend at least two hours at the Embassy. There are several documents required for your citizenship appointment:

When filling out the applications for the passport and CRBA, please provide the information of the genetically related parent, and, if named on the Mexican birth certificate, the second parent. Please be sure to bring supplemental documentation necessary to demonstrate that you have met the requirements to transmit U.S. citizenship. If only one parent is genetically related to the child, physical presence requirements will be based on sections of the law for out-of-wedlock births. We will also need to see the surrogacy contract as well as any relevant medical records. Please be aware that ART and surrogacy situations are complex and frequently require additional documentation.

For all other general CRBA requirements, please click here.

  • Passport application (DS-11PDF 89 KB)

A Social Security number (SSN) is required for this application. Since your child does not yet have one, please make sure to type 000-00-0000 to avoid difficulties when completing the form online. Please do NOT sign this form ahead of time.

 

  • Affidavit of Parentage, Physical Presence and Support (DS-5507PDF 136 KB)

This form is should be completed by the U.S. citizen parent(s) who is/are transmitting citizenship.

 

The consular officer will inform you of the decision at the end of the interview. If you presented insufficient evidence to prove the biological relationship or your physical presence in the United States prior to the birth of the baby, you will be given instructions on next steps. If DNA is suggested, you will be given specific instructions at that time.

If approved, the CRBA and passports take approximately four weeks to arrive at your home in Mexico. If you live in the United States, you may pay for courier service for the delivery to your home there. If your travel is urgent, you may request the passport be printed same-day (or next-day).