The Universal Declaration of Human Rights guarantees the right of all families without distinction to form a family and have children. The same document outlines the basic principles such as dignity, freedom, family, the protection of the state and equality, as stated in the following articles:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
Similarly, the European Court of Human Rights refers to the European Convention on Human Rights, based on article 8, “Right to respect for one’s private and family life”.
Regarding the family’s possibility of opting for surrogate motherhood and having the child registered on the birth certificate in the aspiring parents’ names, the legislation is as follows:
“Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The enjoyment of the rights and freedoms stated in the convention should be guaranteed without discrimination, particularly regarding sex, race, skin colour, language, religion, political views, country of birth, social status, marginalisation, economic circumstances or any other condition. This is stated in article 14, which prohibits any form of discrimination. The same principle should apply when it comes to the birth of a child, regardless of whether this is by adoption, through donors, born naturally to its parents or carried by a surrogate.
The United Mexican States is a member of the UN and a signatory to the most important international treaties; its constitution enshrines the principle of equality between men and women (article 4 of the Mexican Magna Carta) and also acknowledges the right to same-sex marriage. The CDMX law of 2010 – Mexico City – was pioneering in this field.
The constitution also provides that every family has the right to freely decide the number of children to conceive, as well as the time lapse between the birth of one child and another (article 4, first paragraph)
A federal civil code governs the entire territory of the United Mexican States. However, each member state can adopt its own civil and family status.
The Mexican Supreme Court has applied every principle in the definition of legality for surrogate motherhood, so that no detail is neglected in the historic ruling. As things stand today, all families and all surrogate mothers are assured the rights stated in protocols of surrogacy, making Mexico a unique and exclusive destination that allows such programs to operate in complete safety, including for international parents.
Ever since the Mexican Supreme Court (SCJN), analysing an appeal, declared the law of the state of Tabasco (article 92 of the civil code) unconstitutional, replacement (surrogate) gestation in Mexico has been completely LEGAL.
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