In October 2024, Italy made international headlines by passing one of the strictest surrogacy laws in the Western world. This controversial law not only bans surrogacy within Italy but also prohibits Italians from seeking surrogacy abroad. It classifies surrogacy as a universal crime that transcends borders, equating it with serious offenses like terrorism or genocide. The broad scope of this law extends beyond surrogates and intended parents, affecting Italian citizens employed as doctors, nurses, or in other roles related to surrogacy at foreign clinics. The creation and implementation of this law sparked heated debates and concerns across Italy and abroad, particularly within the LGBTQ+ community, reproductive rights advocates, and parts of the Italian medical and legal community.
Under this new law, Italian citizens involved in surrogacy abroad could face severe penalties, including up to two years in prison and heavy fines. Thelaw aims to discourage surrogacy entirely, believing that it exploits and commodifies the female’s bodies. However, many critics argue that the law is not driven by medical or ethical concerns, but rather is a political power move done by Prime Minister Giorgia Meloni to please her supporters and the conservative political base.
We sat down with German and Italian lawyer Alexander Schuster to find out more about the law. Schuster first studied surrogacy as an academic when Italy’s 2004 law was enacted, and his professional experience with surrogacy grew under its enforcement. The 2004 Law on Assisted Reproductive Techniques takes a very restrictive approach: using the term "procreation" rather than "human reproduction". It banned donor insemination, a restriction that was later declared unconstitutional in 2014. It also required women to only transfer fresh embryos , but this was also found unconstitutional in 2009. It also banned any form of surrogacy, including uncompensated surrogacy, and makes it a crime punishable by up to 2 years in prison and a fine of up to 1 million euros.
Why was this law passed?
Until 2004, there was no legal framework for medically assisted reproduction. The center-right government then restricted access to heterosexual couple, married or unmarried, of reproductive age with fertility issues, excluding single individuals, homosexual couples, and donor fertilization. The law also prohibited genetic testing and screening and cryopreservation, two restrictions that were later declared unconstitutional. Advertising, facilitating surrogacy, and commercializing gametes and embryos are declared crimes, though convictions are rare. Convictions for these crimes have essentially never occurred, and the four cases that have made it to the Supreme Court on surrogacy carried out abroad have all been overturned and the couples acquitted. In order to strengthen the criminal prohibition, the Italian Parliament has recently passed a law that extends the crime of surrogacy so that it applies to any Italian citizen, even if the conduct is carried out entirely abroad. So what we see now is actually the extension of the prior 2004 law, by a new center-right government.
Who exactly is covered by the new law? Does it affect people living outside of Italy?
It applies to any Italian citizen, regardless of domicile. It applies to all citizens who advertise, organize and carry out the surrogacy. This includes not only the intended parents and the surrogate, but also any other professional involved, such as a facilitator who holds Italian citizenship, or even if a US judge holds Italian citizenship and approves a surrogacy agreement.
What happens to surrogacy journeys which were already completed legally?
Criminal law cannot be applied retroactively. Once the child is born and the agreement is fully fulfilled, the IPs and everyone else are safe.
What is happening to Italian same sex couples who used donors or surrogates?
The law is drafted in a neutral way, so that gender and sexual orientation do not play a role. However, given the negative attitude of the Italian government towards homosexual couples, their main target, they face the highest risks. A birth certificate with a mother and a father doesn't trigger an investigation in most cases. Exceptions would be a woman with an age incompatible with pregnancy or a notice from an Italian consulate that there is high suspicion (which occurs for travel and birth in Ukraine). We will see how the authorities react when they receive a birth certificate with two fathers.
What happens to surrogacy journeys abroad that are in progress? What should these intended parents do?
The bill that was passed does not make any transitional provisions. When it comes to criminal law, caution is advised. There is a risk of prosecution if a child is born after the law comes into force and the birth certificate is presented to Italian registries. I expect that the law will be enforced around the last ten days of November. There are clearly many arguments against applying it to cases where the pregnancy was already underway, but the risk of criminal proceedings remains.
How will the government know if a child born abroad is born to a surrogate?
This is a good question. Italy cannot rely on the cooperation from countries where surrogacy is not illegal. Unless the IPs make some mistake, Italy may not be able to provide evidence of the "crime" and the burden of proof is clearly on the prosecutor. However, we will have to see what happens. In the first period of implementation, I fear that some conservative judges might find and punish on the basis of probability rather than the proper standard of "probability beyond reasonable doubt.” And this approach would affect gay male couples the most.
Are there any other important things should we know about the law?
In the last 20 years, parts of the 2004 law have been struck down several times by the Constitutional Court and brought into line with fundamental rights. There are strong arguments to challenge the constitutionality of extraterritorial jurisdiction over a minor offense by Italian standards (imprisonment cannot exceed two years unless there are exceptional aggravating circumstances). But Parliament also appoints one-third of the Court's judges, and this is a highly divisive issue.
I do not expect the law to have a de facto impact on Italians living abroad, but I do expect the law to plunge Italy into a state of uncertainty, if not chaos, over the next five years. Lawyers who used to assist intended parents will have to assess the risk of their own prosecution. In about five years, we will see if this extraterritorial crime is unconstitutional and how it will be enforced. Until then, many potential families will be prevented not only from realizing their dream, but also from remedying Italy's plummeting birth rate.
Conclusion:
Italy’s new surrogacy ban has provoked strong reactions both domestically and internationally, and may be a model for other countries who seek to prohibit surrogacy abroad. By extending surrogacy prohibitions beyond Italy’s borders, it threatens those who are in the middle of their surrogacy journeys, as well as for surrogacy agents, and medical and legal professionals who have Italian citizenship. Mr. Schuster indicates the courts might stop the law as they have in the past, but that is cold comfort for the intended parents pursuing surrogacy who have to risk fines and imprisonment.
For Italian intended parents considering surrogacy, it’s essential to consult a knowledgeable lawyer who can provide guidance on Italy’s new surrogacy law.
At Tsong Law Group, we are here to support our international clients every step of the way, working closely with their international counsel to follow their advice and help families make informed decisions as they pursue their dreams of parenthood. Our surrogacy attorneys, licensed in California, Washington, New York, Arizona, Illinois, and Oklahoma, are ready to assist you through every stage of the journey. Contact us today.
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