Surrogacy in Italy: a “Universal Crime”

Introduction

Surrogacy, an arrangement where a woman agrees to carry and give birth to a child for another person or couple, has become a focal point in the global discussion around reproductive technologies. Countries worldwide have taken diverse approaches to regulating surrogacy, with laws ranging from complete prohibition to full legalization. In Italy, the legal framework is highly restrictive, with surrogacy explicitly banned under Law No. 40 of 2004, which governs assisted reproduction. This prohibition reflects a complex intersection of ethical, religious, and cultural considerations aimed at preserving traditional family structures and protecting against the exploitation of women and children.
Despite these legal barriers, a growing number of Italian citizens engage in surrogacy abroad, often in countries where the practice is legal or less regulated. This practice, known as cross-border surrogacy, has given rise to significant legal and ethical challenges upon the return of these parents and their children to Italy. With the recent legislative intervention criminalizing surrogacy as a "universal crime," the legal landscape has become even more contentious.
This article provides a comprehensive analysis of the legal, ethical, and societal issues surrounding surrogacy in Italy, focusing particularly on cross-border surrogacy arrangements and the implications of the new legislation. By examining the current legal landscape, the ethical debates at the heart of the issue, and the potential future developments, this paper offers critical insights into how Italy may navigate the increasing complexity of reproductive technologies in an interconnected world.

Section 1: Legal Framework of Surrogacy in Italy

1.1 Overview of Law No. 40 of 2004
Italy’s Law No. 40/2004 on assisted reproductive technology (ART) provides a stringent framework governing the use of reproductive technologies in the country. This law prohibits several forms of ART, including surrogacy, both gestational and traditional. The law stipulates harsh penalties for parties involved in surrogacy arrangements, including the surrogate mother, intended parents, and any intermediaries.

1.2 Penal Consequences
The legal sanctions for surrogacy in Italy include criminal penalties, with fines ranging from €600,000 to €1 million and imprisonment for up to two years. These penalties underscore the Italian government’s firm stance against the commercialization of human reproduction, reflecting concerns about potential exploitation. The recent legislative amendment to Law No. 40/2004 introduces the concept of "universal jurisdiction," extending Italy’s penal authority to acts of surrogacy committed by Italian citizens abroad.

1.3 The New "Universal Crime" Framework
On October 16, 2024, the Italian Senate approved a law that criminalizes surrogacy as a "universal crime," prosecutable regardless of where the act is performed. This provision has expanded the scope of Italian jurisdiction to include surrogacy conducted in foreign countries where the practice is legal. While this move aims to uphold Italy’s moral and legal principles, it has sparked significant debate about its compatibility with international norms and the practical implications for families involved in cross-border surrogacy.

Section 2: Ethical Considerations in Surrogacy

2.1 Catholic Doctrine and Surrogacy
Italy’s prohibitions on surrogacy are deeply influenced by its cultural and religious heritage, particularly the teachings of the Catholic Church. The Church has consistently condemned surrogacy, arguing that it undermines the sanctity of marriage, family, and human life. These views significantly influence public policy and the legal framework governing reproductive technologies in Italy.

2.2 The Feminist Debate
The feminist perspective on surrogacy in Italy is divided. Some argue that surrogacy exploits vulnerable women, particularly those from lower socio-economic backgrounds, who may be coerced into carrying a child for financial gain. Others, however, support surrogacy as a form of reproductive autonomy, emphasizing a woman’s right to choose whether to use her body for surrogacy. The recent law’s lack of distinction between commercial and altruistic surrogacy has intensified this debate, raising questions about the state’s role in regulating reproductive autonomy.

2.3 Best Interests of the Child
Critics of surrogacy argue that it may harm children born through such arrangements, particularly in contexts where their legal and social status is uncertain. The Italian legal framework often fails to prioritize the best interests of these children, who may face challenges in securing citizenship and legal recognition of their intended parents. The introduction of criminal penalties for cross-border surrogacy further complicates the legal status of these children and their families.

Section 3: Cross-Border Surrogacy and Its Implications for Italy

3.1 Circumventing Italian Law Through Cross-Border Surrogacy
As a result of Italy’s strict legal restrictions, many Italians travel to countries where surrogacy is legal, such as the United States, Canada, and Ukraine. While cross-border surrogacy allows Italian citizens to bypass domestic prohibitions, the new legislation introduces criminal liability for such actions, creating significant legal risks for intended parents.

3.2 Legal Challenges on Parental Recognition
One of the most contentious issues in cross-border surrogacy is the recognition of parenthood. Italian courts have often refused to recognize parental rights for individuals who have had children through surrogacy abroad, particularly in cases where the intended mother has no genetic link to the child. The new law adds a layer of complexity by introducing potential criminal charges against intended parents.

3.3 Citizenship and the Rights of the Child
Children born through surrogacy abroad often face legal hurdles in obtaining Italian citizenship. The refusal to recognize foreign birth certificates listing intended parents creates a legal vacuum that leaves children without clear parental rights or nationality. While adoption in special cases remains a possible remedy, it is a lengthy and uncertain process that does not fully address the rights of the child.

Section 4: The Future of Surrogacy Law in Italy

4.1 Potential Legal Reforms
The criminalization of surrogacy as a universal crime has reignited calls for a more nuanced approach to reproductive law in Italy. Some legal scholars and policymakers advocate for the regulation of altruistic surrogacy under strict conditions, emphasizing the need to balance ethical concerns with the realities of modern reproductive technologies.

Conclusion

Surrogacy in Italy remains a highly contentious issue, shaped by deep-rooted ethical, cultural, and religious factors. While the recent legislative amendments aim to reinforce Italy’s commitment to its moral principles, they have also introduced new legal and ethical dilemmas, particularly for families involved in cross-border surrogacy. As the debate continues, the urgent need for a more comprehensive and flexible legal approach becomes increasingly apparent. Addressing the rights of children born through surrogacy and reconciling domestic laws with international norms will be critical in shaping the future of surrogacy in Italy.

Armando Cecatiello
Studio Cecatiello Family Law
Milan, Italy