In October 2024, Italy took a controversial step by outlawing surrogacy not only within its borders but also for Italian nationals seeking surrogacy arrangements abroad. This significant legal shift has sparked widespread debate around the evolving definition of family, reproductive rights and the state's role in shaping them.

What is surrogacy and why is it considered important?

Surrogacy is an arrangement where a woman (a surrogate) agrees to carry and deliver a child for another individual or couple, known as the intended parent(s). The egg and sperm of the intended parents or donors are typically used, however the surrogate’s egg is used in a minority of cases. It has been a lifeline for those who, due to infertility, medical conditions or sexual orientation, would otherwise be unable to have children.

Globally, surrogacy has been embraced to varying degrees. Countries like England allow altruistic surrogacy, where no financial profit is made, while many states in the USA permit commercial surrogacy, albeit amidst ongoing ethical debates regarding surrogate rights and exploitation. Even traditionally conservative nations like the UAE have softened their stance, removing criminal prohibitions against surrogacy in 2023. Yet Italy’s recent legislative change appears to be a step in the opposite direction.

What does Italy's new law entail?

Under Italian law, Italian nationals who engage in surrogacy, whether in Italy or abroad, face the risk of criminal prosecution and punishment through imprisonment and/or a fine. While those who have already completed surrogacy arrangements are exempt, others pursuing this pathway are left vulnerable to punitive sanctions. Though this applied to domestic law previously, the reform in October 2024 extended criminalisation to international arrangements. This ultimately follows guidance set out in May 2019 by Italy’s Supreme Court of Cassation, where parental orders were rejected on the basis that approving them would disregard Italy’s established legal order intended to uphold and protect the dignity of women.

The law in Italy makes a distinction between parental recognition and criminal prosecution. While the state may acknowledge the parental status of those who use surrogacy, this recognition is fraught with risk of criminal charges. Even then, recent case law indicates that it is only those genetically related to the child that are recognised as legal parents. Whilst it was previously suggested by the Supreme Court of Cassation that the unrecognised parent pursue ‘adoption in peculiar cases’ i.e. step-parent adoption, there is discomfort over relying on adoption orders in surrogacy cases given the processes are two different things. Also, if the fact that the unrecognised parent committed a crime in pursing surrogacy is considered in determining the granting of an adoption order, they may be unlikely to obtain an order anyway.

Therefore, many families fear that coming forward to have their legal parenthood recognised could lead to prosecution and/or no recognition in any event. There are worries that this may discourage individuals from seeking official recognition, creating a precarious legal grey area where children lack clarity about their origins (i.e. that they were born through surrogacy) and parents live under the shadow of potential penalties.

Unintended consequences: the risk of a black market and human rights claims

The ban could inadvertently lead to the rise of a surrogacy black market. In such a scenario, surrogates may be open to abuse and families may opt to circumvent legal channels, resulting in situations where their legal parenthood is not properly recognised. This creates a troubling situation for children, who may grow up without an official legal connection to their parents, further compounding issues of identity and security. For example, this can affect children’s nationality and succession rights and whether parents have the authority to decide upon welfare matters, such as schooling and medical treatment, for their children.

For many, Italy’s decision is surprising given that other European nations are moving toward greater acceptance of alternative family structures, with Europe on the whole taking pride in being at the forefront of social progression and human rights. Indeed, the compatibility of Italy’s new law with the European Convention on Human Rights (ECHR) is uncertain. The ECHR enshrines the right to family life and prohibits discrimination. Over time, legal challenges may arise, questioning whether Italy’s blanket ban violates these principles, especially when balanced against the evolving concept of family.

Adoption: an alternative pathway

For Italian nationals seeking to grow their families, adoption remains a legal alternative. However, adoption is a lengthy and often arduous process that doesn’t offer the biological connection that surrogacy can provide. While adoption is a fulfilling and valuable option for many, it may not fulfil the desires of those hoping to have a biological tie to their children.

A missed opportunity for progress

Society is changing and family structures are becoming increasingly diverse. Arguably, Italy’s ban on surrogacy is a missed opportunity to embrace this evolution, with safeguarding concerns better met through implementing ethical, regulated frameworks that work to protect all parties involved: surrogates, intended parents and most importantly the children. This has been the central focus of England’s legislative reform in the area of surrogacy. 

It will be interesting to see how the implementation of the change in law in Italy evolves in practice. There have been no intended parents that have been prosecuted to date and indeed there are questions over how prosecuting could be in the children’s best interests and how it will work in practice e.g. what will happen to the children should their intended parents be imprisoned? However, it is early days.