Legislation on surrogacy in Italy
Italian legislation in the field of assisted reproductive technologies is rather conservative. The Italian Law of 19 February 2004, No. 40 "On the Norms of Assisted Reproductive Technologies", not only completely prohibits surrogacy, but also severely restricts other reproductive technologies (art. 12, 6th paragraph, Law No. 40/2004, containing the rules on medical insemination techniques). This law prohibits third party reproductive programmes, i.e. surrogacy and donation, as well as embryo cryopreservation.
Any advertising of surrogacy is also prohibited. For organising and assisting in the implementation of such a method of childbirth, Italian law provides for liability - imprisonment for a term of three months to two years and a fine, which can reach up to one million euros.
However, in accordance with the same Italian Law No. 40 of 19 February 2004 "On the norms of assisted reproductive technologies" , the use of in vitro fertilisation in Italy is absolutely legal, although it has a number of conditions and restrictions. Thus, single people are not treated for infertility - the law allows artificial insemination only for couples who are legally married. For the in vitro fertilisation procedure, an infertile couple must provide a certificate of infertility, after which the spouses can count on in vitro fertilisation, which is carried out at the expense of the state. However, only the genetic material of the husband and wife can be used for fertilisation - it is illegal for egg and sperm donors to participate in the procedure. If, despite the ban, donor cells are still used, the biological parents will not be able to register parental rights to the child.
Given the difficulties Italians face with fertility treatment, it is not surprising that infertile couples are forced to travel to other countries where legislation allows surrogacy and germ cell donation. Previously, the Italian Government did not prohibit its citizens from utilising surrogacy services outside the country. However, Italian government initiatives now aim to make surrogacy a "universal offence" and cannot even be practised abroad. In addition to secular legislation, surrogacy within Italy is also opposed by the Roman Catholic Church, which has a great influence on public opinion. Thus, since surrogacy is legal in the USA, Canada, the UK, Denmark, Portugal and elsewhere, an Italian couple can resort to it in these countries, but they will have difficulties when they return to Italy.The official registration of a child born abroad through surrogacy with same-sex couples in Italy's registries is particularly challenging due to government initiatives. Same-sex civil unions were legalised in Italy in 2016, overcoming opposition from Catholics and conservative groups. However, the court did not give these couples the right to medically support childbearing and adopt children, fearing it would encourage surrogate pregnancies, which remain illegal in the country.
Previously, it was largely up to local authorities in Italy to decide whether specialised bodies would register births to same-sex partners. In October 2021, a Milan court handed down a judgement requiring the city to register children of same-sex fathers born to a surrogate mother, arguing that the child had no control over the circumstances of his or her birth.
However, in March 2023, Italian authorities banned the practice and since then the names of some parents have been struck from the city's registers. To date, 33 birth certificates of children born to lesbian couples back in 2017 have been challenged by Italian prosecutors. A way out of the situation may be for single persons to apply for adoption in special cases, such as:
a) a special case where the application is from persons who are related by blood up to the sixth degree or have a pre-existing stable and enduring relationship where the child is orphaned by both father and mother;
b) a special case where the application is made by either spouse if the child is their own child, including adopted children or children of the other spouse;
c) a special case where the child is disabled and orphaned by both parents;
d) a special case where it is impossible to provide for a long period of time and the child has been orphaned from both parents. In all "special case" adoption proceedings, the competent court must be satisfied that the adoption is in the best interests of the child. Same-sex couples who are married or simply living together are only allowed to adopt their biological children.
There are numerous judicial decisions of the European Court of Human Rights and Italian courts concerning the status of children born abroad through surrogacy contracts concluded by Italian citizens.
The decision of the Bari Court of Appeal of 13 February 2009 (App. Bari, 13 February 2009) dealt for the first time with the recognition in Italy of the status of parentage created abroad through the surrogacy process. It ruled on the recognition of the parental relationship of two minor children born in the United Kingdom in favour of the Italian putative mother, specifying that, for the purposes of the declaration in Italy of "parental orders" issued in the United Kingdom, the current statutory prohibition of surrogacy and the principle of favouring "biological" over "social" motherhood are not in themselves indicators of opposition to public order. Furthermore, the best interests of the minor must be prioritised (Article 3 of the Convention on the Rights of Children and Adolescents).
By judgement of the Court of Cassation n. 24001/2014, the Supreme Court confirmed the status of an adopted child who was born in Ukraine from a surrogate mother and was not genetically related to either parent (married heterosexual couple, Italian citizenship) and refused to recognise the status in Italy of filiationis.
The Strasbourg Court in the double judgments of Mennesson and Labassee v. in 2014 established the obligation of contracting states to recognise the status of a child born lawfully abroad after surrogacy on the basis of the right to respect for private life enshrined in Article 8 ECHR, given that this prerogative includes the right of every person to establish the details of his or her identity as a human being, including kinship relations. While recognising the broad limits of discretion for certain States in the matter of pregnancy for others, the Court acknowledged that the above limit had been exceeded by the lack of legal recognition of a kinship relationship between the child born and the putative father, where the latter was also the biological father.
The European Court of Human Rights judgment of 24.01.2017 "Case of Paradiso and Campanelli v. Italy" (complaint No. 25358/12) on appeal against the applicants' complaint that the measures taken by the Italian authorities, which led to the final removal from their family of a child conceived using assisted reproductive technologies and born by a surrogate mother on the territory of the Russian Federation, violated their rights to respect for private and family life. There was no violation of the requirements of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in the case.
It should be noted that Paradiso and Campanelli v. Italy (2015), in which the Italian authorities objected to the registration of a child born in Russia through "heterologous double" surrogacy, i.e. not genetically related to either of the two intended parents (a heterosexual and married Italian couple), did not resolve the issue of the compatibility of this refusal with the Convention on procedural grounds alone (non-exhaustion of national remedies).
Following some previous decisions on the recognition in Italy of foreign parental relationships resulting from surrogacy, Italian jurisprudence has developed two different legal trends. On the one hand, due to the duties of protection established by Art. 8 ECHR, derived from the principle of Mennesson c. France and Labassee v. France, the Italian legal system recognises parentage only in relation to the genetic father (i.e. the male partner of a heterosexual or homosexual couple).
On the other hand, the negative attitude towards the recognition of parental relationship in relation to an intentional non-biological father persists for public policy reasons related to the underestimation of the institution of surrogacy, imposing, alternatively, on intentional paternity the possibility of restoring parental ties in Italy by applying to the Italian judicial authority for "adoption in individual cases" in accordance with art. 44, lit. d, of Law no. 184/1983 ( Cass, single section, judgement of 8 May 2019, para. 12193).
The Italian Constitutional Court issued judgement no. 33/2021, where it emphasised that the practice of surrogacy "unbearably offends the dignity of women and deeply undermines human relations". But at the same time authorised the Italian legislator to intervene in this matter as soon as possible in order to achieve at the normative level the balance required by the various interests.
Current trends are such that the Italian government wants to outlaw surrogacy carried out abroad and limit the rights of same-sex parents, who are very concerned about such intentions. The Italian parliament is debating a bill that aims to criminalise surrogacy performed abroad. In addition, the government is also tightening its stance towards same-sex families. Municipalities that have so far issued birth certificates recognising same-sex parents have been advised not to do so. If the bill is passed, couples who have used surrogacy services abroad could face up to 2 years in prison.
The initiative is part of a wider problem in Italy, where there is no law recognising children of same-sex couples. Because only one parent is recorded on a child's birth certificate, the legal status of the other remains uncertain until the long and costly adoption process is finalised.
Critics of the bill said extending the ban to people who use surrogate mothers abroad is impractical and unconstitutional.
We are closely monitoring all changes to the legislation and will provide timely updates on any developments. We understand the importance of this issue to our clients and ensure that we provide current and reliable information so that you can make informed decisions.
Head of judicial department «Success» surrogacy centre