📜 Italy Expands Surrogacy Ban: Couples Can No Longer Go Abroad to Have a Baby

This week, Italy's controversial new Law n. 169 of 4 November 2024, which extends the crime of surrogacy abroad for Italian citizens, has come into effect following its publication in the Gazzetta Ufficiale on Monday 18 November 2024.

Surrogacy has been banned in Italy since 2004. So, what does this new legislation change? Keep reading to find out.

Table of Contents

• 🤰 What Is Surrogacy?

• 🚫 How Surrogacy Is Regulated in Italy

• 🚨 What’s New in the Legislation?

• 🚓 What Is a Universal Crime?

• 🏳️‍🌈 The New Law Limits Reproductive Rights for …

🤰 What Is Surrogacy?

Surrogacy is a form of assisted reproduction in which a woman, known as a surrogate, carries and gives birth to a baby for another person or couple (including same-sex couples).

There are two main types of surrogacy:

➡️ Traditional Surrogacy: The surrogate is also the child’s genetic mother, as her own egg is used.
➡️ Gestational Surrogacy: The surrogate has no genetic link to the child, as the embryo is created using third-party gametes.

Typically, a surrogacy agreement involves a contract where the surrogate agrees to relinquish parental rights to the intended parents after the child's birth.

🚫 How Surrogacy Is Regulated in Italy

While surrogacy is legal in many countries, such as the United Kingdom and most U.S. states, it has been strictly prohibited in Italy since 2004 under Law n. 40/2004.

Italy considers surrogacy a degrading practice that violates women’s dignity, even when the woman consents. Both the Supreme Court of Cassation and the Constitutional Court have reaffirmed this stance.

🚨 What’s New in the Legislation?

The significant change introduced by the new Law n. 169/2024 is the extension of the surrogacy ban to include the prosecution of Italian citizens who engage in surrogacy abroad. The aim is to prevent Italian couples from resorting to surrogacy abroad in countries where it is legal.

Italy stands alone in the world imposing such a strict ban on surrogacy.

The title of the new law is “Modification to article 12 of law n. 40 of 19 February 2004, regarding the prosecution of the crime of surrogacy committed abroad by an Italian citizen”. The law contains only one article:

This means that as of Monday, Italian citizens who commit the crime of surrogacy abroad are subject to prosecution under Italian jurisdiction. Even if surrogacy is legally performed in another country, it is now punishable upon the Italian citizen's return to Italy.

As a result, parents who have undergone surrogacy abroad and return to Italy can now be prosecuted and risk jail from three months to two years. They also risk a substantial fine from € 600.000 to up to one million euros.

Therefore, not only is the practice prohibited in Italy, but it is also banned abroad, in countries where it is legal. This universal application of the law, wherever the crime is committed, makes surrogacy a "universal crime" for Italian citizens. However, the term “universal crime” is not technically accurate in this context. Read on to learn why.

🚓 What Is a Universal Crime?

Under the principle of territoriality, a country’s criminal laws apply to all individuals, regardless of their nationality, but only to crimes committed within its borders.

By contrast, the principle of universal jurisdiction, a concept of international law, extends criminal jurisdiction globally, allowing certain crimes (considered “universal”, such as genocide and war crimes) to be prosecuted regardless of where they occur or the nationality of the suspects or victims.

The new law applies exclusively to Italian citizens engaging in surrogacy abroad, meaning it is not truly “universal”. In fact, non-Italian citizens participating in surrogacy outside Italian borders are unaffected.

Furthermore, according to Italian law, the “dual criminality” principle generally applies: for an Italian citizen to be prosecuted for a crime committed abroad, the act must also be considered a crime in the foreign country where it occurred. Since surrogacy is often legal in countries where Italian citizens may seek it, this principle is not applicable, making prosecution under the new law controversial.

🏳️‍🌈 The New Law Limits Reproductive Rights for LGBTQ+ Families

This new law, introduced by Italy’s right-wing government, has sparked significant controversy also for its impact on LGBTQ+ families.

For same-sex couples, surrogacy is often the only viable option to have children, because in Italy:

➡️ Same-sex couples cannot legally adopt or access IVF.

Prime Minister Giorgia Meloni, a staunch advocate for traditional family structures, believes that children should be raised by a mother and a father. Her government’s policies reflect the strong influence of the Catholic Church, further limiting LGBTQ+ rights in the country.

Critics argue that this law represents a major step backward for LGBTQ+ equality, further marginalising an already vulnerable community.

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