Behind the New Italian Ban on Surrogacy

Last November, the Italian Parliament reaffirmed its commitment to protecting the dignity of women, championing the right of each child to his or her own family, and prohibiting the commercialization of the human person. After a surprisingly smooth legislative process, its chambers approved a bill that made surrogacy a “universal” crime. 

Though some media outlets portray this as the draconian measure of a far-right government, fearing the ban’s consequences for children and couples (mostly same-sex ones), the truth is that Italy never allowed surrogacy within its borders, nor did it ever grant adopting rights to homosexual unions. On the latter front, the country’s norms on adoptions are informed by the ancient Roman principle adoptio naturam imitator (adoption imitates nature), thus requiring parents to be a married male and female couple of reasonable parenting ages, who have cohabited for a minimum of three years prior to the adoption. Regarding surrogate motherhood, ever since 2004, the country has deemed the practice criminal, prohibiting the engagement of surrogates to carry another woman’s biological child. 

This latest amendment will make it harder for Italian citizens to elude the national prohibition on surrogacy. What the term universal entails, and what the recent law added to the original ban, is that Italian citizens will be prosecuted for engaging in the practice of surrogacy even if performed abroad. The amendment was passed in response to our increasingly globalized economy, international pressures, and a general unwillingness to accept that not every desire may become a right. 

The History of Italian Surrogacy Laws

In 2004, Italy enacted a law to regulate assisted reproductive technologies (ARTs) and establish what was and what was not permitted within the country’s national borders. Known as “legge 40” (l.40/2004), that enactment created some order in what had come to be described as the Wild West of ART. The Italian legislature worked carefully to ensure that, while enabling and supporting family formation (as explicitly and formally provided by Article 31 of the constitution) and allowing couples to make the best use of modern technological advances in the field, access to ARTs would not contradict and violate other principles and values equally protected by its fundamental charter. Some of these principles included the equal dignity of all people (Article 3), personal freedom (Article 13), the rights of children and parents (Articles 29 and 30), the dignity of motherhood (Article 31), and the prohibition on commercializing human organs or body parts (Article 32 of the constitution and Article 5 of the country’s civil code). 

In its original formulation, legge 40 clearly indicated that ARTs (mainly in vitro fertilization, or IVF) could be accessed exclusively by sterile or infertile heterosexual couples when other and less intrusive remedies would not allow them to have children. The law explicitly stated that it protected the rights of all the subjects involved, including the unborn. It also prohibited the production of embryos that would not be implanted in the uterus as well as the use of gametes external to the couple. The same criminal status was—and still is—attributed to cloning and the creation of human chimeras. 

Notably, it also prohibited surrogacy: 

Anyone who, in any way performs, organizes, or advertises the commercial exchange of gametes and embryos or surrogate motherhood is punished with 3 months to 2 years imprisonment and with a fine from 600,000 to 1,000,000 Euro. 

As is true for most crimes, based on the general provision of Article 56 of the criminal code, attempts to perform these actions are also punishable.

Unfortunately, this original ban was not effective. In its original formulation, it did not prevent couples from traveling abroad and engaging surrogate mothers where the practice is legal. It did not prevent them, moreover, from demanding recognition of those children as their own upon their return, thus placing national and international authorities in front of a rather burdensome “fait accompli”: deciding the future of a baby born through a criminal practice. In this context, some Italian judges, rapidly followed by European ones, started to argue that it was in the child’s best interest, once born, to remain in the care of the “parents” with whom he already spent most of his life, i.e., those who had violated the Italian prohibition, be they biological parents, or merely intended ones (the purchasers of the child). In the first case, the recognition was often automatic. The second scenario required an adoption proceeding, and it became a common practice.

Italian citizens began to elude and even ridicule this law.  In other countries, access to ARTs and surrogacy is also open to same-sex couples and singles, but that’s not the case in Italy. What should the courts do then? Should children gestated and born in violation of Italian laws be taken from these putative “parents?” Or should Italian sovereignty capitulate, accepting that whatever adults want, and pay for (even other lives), becomes a right? 

The Current State of the Law

Some judicial authorities chose the latter option, backing the choices of these parents and recognizing the foreign contracts as valid sources of filiation. Others did not, and demanded an adoption proceeding for the intended parent. The arbitrariness of the situation became evident and loud, demanding legislative intervention. 

In 2022, one of the highest Italian courts clarified how surrogacy contracts remain invalid under Italian law, being contrary to public order. The practice, the court held, 

aims at erasing the relationship between the woman and the child she carries in her womb, ignoring the biological and psychological bonds that mother and child establish in the long duration of the pregnancy, and causing the loss of the human meaning of both pregnancy and of birth. (Corte di Cassazione, Sezioni Unite, n. 38162/2022). 

Before that, in 2017, the Constitutional Court held the ban constitutional, stating that surrogacy “offends intolerably the dignity of the woman and profoundly undermines human relationships” (Corte Costituzionale, 272/2017). 

Both nationally and internationally, feminists, atheists, and left-leaning voices have long denounced the exploitation of women’s bodies that surrogacy entails. In addition to the Casablanca Declaration, signed in 2023 by 100 experts of seventy-five nationalities, which calls for the international prohibition of the practice, the European Parliament now officially considers the exploitation of surrogacy a form of human trafficking. In 2015, a resolution of the same European body called for the prohibition of surrogacy, stating that it “undermines the human dignity of the woman.” Earlier this year, in his address to the members of the diplomatic corps, Pope Francis called for an international prohibition of surrogate motherhood:

I deem deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs. A child is always a gift and never the basis of a commercial contract. Consequently, I express my hope for an effort by the international community to prohibit this practice universally. At every moment of its existence, human life must be preserved and defended; yet I note with regret, especially in the West, the continued spread of a culture of death, which in the name of a false compassion discards children, the elderly and the sick.

Last November, at last, the Italian Parliament intervened. It did so by adding a sentence to its longstanding prohibition of surrogacy, stating: “If these facts, with reference to surrogate motherhood, are committed abroad, the Italian citizen is punished according to Italian law.”

Clearly, this does not make the crime “universal.” American citizens are more than free to travel to Ukraine, or to stay in California, to have a child through surrogacy. Nor does Italy prosecute foreign doctors who perform these acts abroad and travel to Tuscany for the summer. The new “universality” of the ban is simply the label for crimes that the Italian legislature deems worthy of punishment even when performed abroad by its own citizens. These are usually serious crimes (such as sexual violence and human trafficking) and it would be hard to argue that, in our globalized and largely virtual world, law enforcement should always stop at the national borders.

Speaking of the frustration of the Italian legislature, it is also worth noting that, while surrogacy is still a crime, legge 40 has been the object of constitutional revisions ever since its enactment. As a result, it no longer prevents heterologous fertilization (i.e., using sperm or eggs from a donor), nor does it limit ART access to sterile or infertile couples, as it originally did. The production of extra embryos is now permitted, as well as a preventive selection of those that should be implanted, creating serious legal confusion within a system that repeatedly and explicitly protects the rights of the unborn.

Everywhere, not just in Italy, the contours of what is criminal and what is a human right are vague and evolving, pushed ever further by a booming fertility industry (and a very promising market: ART children come at a price). Adults to whom technology can now promise a child are having a hard time understanding that, while ought necessarily implies can, the opposite is far from true. We’ve all heard about Elon Musk’s project “Neuralink,” and while opinions on its soundness may differ, the bioethical questions that our society will soon face and need to answer are urgent and often scary. 

Fortunately, next to the shortsightedness of those who’ve already announced their intention to challenge the new surrogacy ban, there are a number of national and international voices, institutions, and even courts that praised what Italy decided to do. 

I was recently and pleasantly reminded that Italian Prime Minister, Giorgia Meloni, promised stronger safeguards for women and mothers, just like those that this reinforced criminal provision sets in place. This was in the context of a conference that the Austin Institute co-hosted with the Centro Studi Livatino, a natural law think tank based in Rome, in the spring of 2023. In her message to the conference participants, she wrote that “we want a nation where it should not be scandalous to say that motherhood is not for sale, that wombs cannot be rented, and that children are not shelf goods.” Apparently, she kept her promise.

Whether the new ban will be able to stop, or at least slow down, the new reproductive market is debatable. The problem is not only the couples who’ve already promised to challenge the new law in court, nor the champions of “reproductive rights”—who in Italy are the same people fighting for the“right to die.” The problem is not only the permissive international courts and lawmakers who have not only lost the ability to discern right from wrong, but doubt even the objective existence of the two. As long as young adults continue to understand themselves and their existence as individual and self-referential experiences, and to see marriage and the creation of a family as merely accidental, optional events of their mature lives; as long as we, as a society, won’t reject the idea that sex and reproduction are unrelated, and accept, on the contrary, that healthy human bodies are intrinsically generative; and as long as we will continue to treat life—in all its stages—as a disposable object, people will find ways to elude the law, commercialize children, exploit women, and destroy the lives of all the subjects involved.  

Image by Yakobchuk Olena and licensed via Adobe Stock.