Surrogates, Doctors and Legislators. A Shift in the Mexican International ART Circuit from 2015 to 2016
Résumé
In March 2016 an initiative on the part of the Mexican Senate regulated the use of Assisted Human Reproductive Techniques (ARTs)—including surrogate motherhood—for the first time on the federal level.
Since a 1997 modification to two articles in the Tabasco Civil Code (Tabasco is one of Mexico’s thirty-two state-like federal jurisdictions) had validated uterine surrogacy contracts, this practice had been undertaken for nearly eighteen years, legally, yet without explicit regulation. During that period, intended parents of all nationalities, ages and sexual orientations who sought out such practices had access to a wide range of medically-assisted reproductive services, from artificial insemination to sex-selection, ICSI and surrogacy. Their procedures were undertaken both in Mexico City as well as in Tabasco’s state capital, Villahermosa, where medical infrastructure and laboratories were assured, with the proviso that birth certificates be issued in Tabasco. The resort city of Cancún was added to this clinic- and agency-network, allowing Mexico to insert itself within an international medically-assisted reproduction network.
In 2014 and 2015, a number of Mexican press reports of Spanish citizens who found themselves unable to leave Mexico because they could not obtain passports for their children born of Mexican surrogates, as well as a series of media reports transmitted on a widely-watched, nationwide newscast, brought the issue of surrogacy in Tabasco to the center of a media, legal and public-opinion-related polemic.
Our presentation analyzes changes that occurred between 2015 and 2016 based on the voices of those who were their agents—physicians, legislators and surrogates—and poses a series of questions with regard to their meaning and importance.
The change brought on by a federal Senate initiative on April 26th 2016 largely translates to a prohibition on non-Mexican citizens’ access to ART, alongside prohibitions on those older than forty or who do not suffer from medical sterility. In particular, the legal initiative’s scope centers on the prohibition of surrogacy agencies; i.e., it combats the presence of intermediaries, whose practices are currently penalized yet whose involvement—up to the time of the law’s approval—guaranteed participation on the part of surrogate mothers and egg-donors on the regional, national and international level.
The Mexican experience leads to three conclusions regarding surrogacy:
The first is based on ethnographically documented, empirical evidence that in no case did a surrogate mother used her own oocyte; specifically, in the period when it was not an illegal practice, that a woman with a genetic link to the embryo hand it over to the intended parents after having gestated it, was avoided. This restriction—that Tabasco civil code, in practice, allowed—had to do with “objections of conscience” imposed by physicians and attorneys, as well as on the part of the surrogates themselves, who expressed an unwillingness both to hand over genetic offspring as well as donate ovocytes.
Therefore we could posit that, in the case of Mexico, cultural factors and belief systems operated above and beyond legislation or regulation to establish an ethical threshold with regard to surrogacy practices.
The second experience, an outcome of the first, confirms the vast distance that exists between legal structures and belief and cultural systems in a nation as culturally and ethnically diverse as Mexico. The fact that between 2010 and 2016, more than eight ART legal initiatives have been unsuccessfully brought before Mexico City’s Legislative Assembly reflects, in addition to a lack of consensus between political parties and factions, the ignorance of those who draft such legal initiatives when it comes to the technical, medical, bioethical and cultural factors that surrogacy entails.
Finally, a consideration of the immediate consequences this change in Mexican legislation has provoked reveals a series of affected levels:
-At the “user” level, surrogacy has been restricted to Mexican citizens in a particular age range and with diagnosed infertility; this requires single parents and gay couples or those who have exceeded the age limit to seek other legal means to carry out the practice.
-For physicians and attorneys, the 2016 initiative represents a reduction in the number and origin of users; the economic fallout is not yet commensurable.
-And clearly, potential surrogate mothers and surrogacy agencies are the most affected parties. The former because the new law establishes that only direct agreements between surrogates and intended parents may be carried out within an “altruistic” legal framework; and the latter because their activities have not been merely prohibited but also made punishable by law.
In the national context, the change to the law reveals a rejection on the part of legislators to presenting an image of Mexico as a nation that offers “geopolitical” benefits with regard to these practices (as Thailand and India once did), in favor of that of a developed nation that prohibits them (France, Denmark, Spain) or regulates them (Canada and the United States).
Nevertheless, based on testimonies gathered in our fieldwork, it becomes evident the true change with regard to Mexico’s participation in the ART industry basically comes down to a geographical re-routing. We suggest this re-routing responds to global-level market imperatives and not to the type of participation that an emerging nation like Mexico represents internally. Our presentation title alludes precisely to this issue.
Domaines
Anthropologie sociale et ethnologie
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