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Two men stand beside a pregnant woman cradling her belly.

Assistant Professor in Family Law Dafni Lima responds to the Italian parliament's recent decision to criminalise surrogacy worldwide.

The Italian Senate recently passed a  making surrogacy a “universal crime”. In a country where surrogacy is already illegal, and has been since 2004, this decision takes restrictions to a whole new level.

While Italian law already prohibited surrogacy within Italy, the new ban will make it a crime for Italians to access surrogacy abroad – even in countries where the practice is legal.

The use of the term  (reato universale) to describe the ban has raised further concern. The language evokes the wording of the Italian criminal code for crimes considered so serious that they contravene . The wording therefore puts surrogacy on a par with genocide and crimes against humanity.

Countries are not aligned on whether surrogacy should be allowed or prohibited. , albeit with different restrictions and safeguards. In Greece, non-commercial surrogacy has been legal , allowing the intended parents to have legal parenthood at birth. In California, even so-called commercial surrogacy – where the surrogate receives compensation – .

Other countries, including France and , prohibit surrogacy. This means that the surrogate is the legal mother when the child is born. But they still typically allow the intended parents to establish a legal bond with the child by other means, for example by giving legal recognition to the genetic father alongside the surrogate mother or to both parents via adoption, in cases where surrogacy has been sought abroad.

In the UK, the  is the legal parent at birth but courts can transfer parenthood to the intended parents through a , a surrogacy-specific mechanism designed to be less burdensome than adoption.

Italian prime minister Giorgia Meloni called the new surrogacy ban  and celebrated it as protecting women and children from “commodification”. Others see the ban as the opposite of protecting women and children.

International rulings

The European Court of Human Rights often examines events in its member countries (which include Italy) to determine whether there is broader consensus on an issue. In 2014 it looked into surrogacy in its  judgment. And in  it issued an advisory opinion on the matter.

While it found no consensus on the lawfulness of surrogacy arrangements, it decided that the rights of children born through surrogacy require “a possibility of recognition of a legal parent-child relationship”. Italy’s absolute ban goes against this reasoning.

In 2019, the British supreme court also invoked the  as the main driver for judges to recognise intended parents as legal parents. To do otherwise in most cases, it concluded, risks leaving the child “legally parentless (and possibly also stateless)” – because they would be legally tied to a person living abroad and who did not intend to be their parent.

A  found that most surrogates don’t view themselves as the mother and would support recognising intended parents as legal parents from birth.

Meloni’s government, led by the far-right Brothers of Italy, has consistently focused on policies that promote what it sees as a . Running on a platform focused on the  of “God, family, fatherland”, Meloni’s government has been open about its anti-LGBTQ+ stance.

Banning surrogacy was in the , along with policies against same-sex marriage and same-sex adoption. During the debate in the Senate, a Brothers of Italy senator called  “the foundation of our civilisation”. Meloni’s policies, from banning surrogacy to , curtail reproductive choice – ideologically driven by an emphasis on “natural” motherhood.

While it is mostly  who use surrogacy by going abroad, many of them will  that they had a child this way. Same-sex couples are even more restricted since they obviously cannot fly under the radar in the same way. Under Italian law, they also have no other choices for having a child together: they are banned from accessing IVF or adopting.

While legal scholars and activists  whether the law can hold up to legal scrutiny or how it will be applied in practice, same-sex parents express  that they are faced with two impossible options: leave their country indefinitely, or stay in Italy and face prison time. Under the new law, they face up to two years in prison and a fine of up to €1 million (£836,000).

Italy’s surrogacy ban is perhaps no surprise in an era of populist politics, where LGBTQ+ and women’s rights are increasingly weaponised, but it should still worry us.

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