Towards a stricter ban on surrogacy in Italy?  

Surrogacy in Italy is illegal. Nevertheless, extending the ban to individuals who access surrogacy abroad is now being discussed by Parliament.

Currently, Italian law on assisted reproduction technology states that anyone who carries out, organises or promotes surrogacy shall be punished by imprisonment of three months to two years and a fine of €600,000-€1 million. The law also reflects Italian civil code that states 'the mother is the one who gives the birth'. This law has undergone many amendments over the years, but the total ban on surrogacy contained therein has never changed.

The Italian Constitutional Court emphasised 'the high degree of disvalue that our legal system attributes to surrogacy, which is prohibited by a specific criminal provision', defining it as a practice that 'intolerably offends the dignity of women and deeply undermines human relationships'. Later, faced with instances of children being born via surrogacy, the same Court affirmed also that 'the interests of the child will then have to be balanced, with the legitimate purpose pursued by the legislature of discouraging the use of surrogacy'.

Over the years, the ban on surrogacy has led many Italian couples, whether heterosexual or homosexual, to access surrogacy abroad and then seek the recognition and recording of foreign birth certificates within the Italian legal system.

Due to the ban, the legal recognition of parenthood in these cases has not been simple. On the one hand, in most cases and despite the ban, the foreign birth certificate is recorded by the registrar, though this is with the risk that it may still be challenged by the prosecutor. On the other hand, often only the relationship with the genetic parent (ie, the one who used his or her gamete) is recorded while the parent with no biological link to the newborn(s), does not always have the same legal recognition. Therefore, in order to protect the interest of the child, people resort to the institution of the stepchild adoption.

Many find this measure is not satisfactory because its effects are more limited than the legal recognition of parenthood that would result from them being recorded on the birth certificate. This is not without risk, due to the necessity of the genetic parent being required to provide consent to the adoption. One pertinent case featured a female same-sex couple who were not in a civil union, who split up. The genetic mother would not consent to the recognition of the parental bond through the stepchild adoption of her former partner, making clear the lack of security this process leaves the non-genetic parent with.

Recently, the situation heightened when a letter was sent to Guiseppe Sala, current Mayor of Milan. Sala, himself believes the document was sent to him as a politician committed to LGBT+ rights, as he had kickstarted the systematic registration of the children of same-sex couples in the civil register (see BioNews 1184). It is interesting to note that the order specifically targeted same-sex couples, although heterosexual people use surrogacy abroad too. Same-sex parents learnt they had been removed from their childrens' birth certificates in early 2023.

In addition, it is also worth mentioning that the Italian Senate Committee on European Policies rejected the proposal for EU-wide legislation to enforce parental recognition of children between member states, including those of same-sex couples, and the adoption of a European filiation certificate.

This uncertainty over parental recognition of children born via surrogacy or to same-sex parents prompted politicians in Italian Prime Minister Giorgia Meloni's party to propose a stricter ban on surrogacy. The final draft (that is now under parliamentary discussion) aims to criminalise Italian citizens who access surrogacy services in foreign countries, even where surrogacy is legal and appropriately regulated. It aims to fight so called 'procreative tourism', concerning people who go abroad to perform surrogacy and then come back to Italy with the newborns.

The consequence of potential approval of the bill currently under consideration in the Houses of Parliament does not appear entirely clear.

Enforcing a stricter ban against surrogacy to include those who travel to countries where the practice is permitted seems an unreasonable and outdated measure, that could be declared unconstitutional in the near future. In addition, the law proposal strengthens the prosecutability of surrogacy in order to deter its use, without considering the protection of children born in this way, although this was recently requested by the Italian Constitutional Court.

Despite this legislative change, its concrete effects are still unclear, and thus begs the question whether the Government is using its policy to cast moral aspersions on surrogacy rather than honestly seek to act in the interest of children born in this way. Criminalising surrogacy abroad could lead to couples attempting to bypass the ban, no longer requesting the birth certificates for these children are recorded in Italy. This would strongly decrease the protection for newborns, and children who will be less able to access public services, putting them at considerable disadvantage.

Therefore, the law proposal seems inadequate to address the complex ethical, social and legal implications related to surrogacy. If the state wanted to discourage the use of this practice and, more generally, to combat the procreative tourism (including for female same-sex couples or single women who travel to other countries to access donor sperm), perhaps, a more realistic attempt might be to revisit adoption law in the country and consider opening this possibility to same-sex couples and single people as well.