Surrogacy and International Law: Challenges of Extraterritoriality
Italy is currently facing a severe demographic crisis, characterized by a significantly low birth rate. In 2023, only 379,000 births were recorded in the country — the lowest number since Italy's unification in 1861.
Despite this, in October 2024, the Italian Parliament approved amendments to Law No. 40/2004, prohibiting Italian citizens from using surrogacy services abroad. Since 2004, surrogacy had already been banned domestically, but many couples sought this option in foreign countries. The new amendments impose penalties of up to two years in prison and fines of up to €1 million for those who engage in surrogacy outside Italy.
This initiative raises significant challenges under international law and brings forth an important legal question: how justified is state interference in the personal lives of its citizens when they are outside its borders?Many experts argue that this law exacerbates the demographic crisis in the country by limiting options for infertile couples and same-sex families to have children. Opposition parties and human rights organizations have criticized the law, labeling it as "medieval" and claiming it violates human rights.
Franco Grillini, an LGBTQ activist, called the law "monstrous," stating, "If someone has a child, they should be given a medal. Instead, you are sent to prison if you have children through non-traditional means." Catherine Huguenot of ILGA-Europe emphasized that the law reinforces social stigma and legal uncertainty for LGBTQ families, adding, "Although the law will affect everyone, the debates have made it clear that its target is to further pressure the Italian LGBTQ community."
A representative from the "Fertility Europe" group warned that "the absence of regulations or legislative bans does not eliminate the need for surrogacy but forces prospective parents to seek alternative options, often risky and ethically questionable."
We share the experts' opinion that the principle of extraterritoriality, which allows a state's laws to be enforced outside its borders, requires justification, especially in matters related to reproductive rights. Punishing citizens for actions that are legal in another country creates legal and ethical dilemmas. It may be perceived as a violation of other states' sovereignty and fundamental international legal norms. Moreover, such regulation may conflict with fundamental human rights, including the right to private and family life guaranteed by the European Convention on Human Rights (ECHR), and restrict basic rights such as the right to family and reproductive freedom enshrined in Article 16 of the Universal Declaration of Human Rights.
Summarizing expert opinions, applying sanctions against citizens who use surrogacy services abroad may be seen as interference in their private lives, a restriction on freedom of movement, and a violation of their right to reproductive freedom. This creates a precedent for discrimination and questions the legitimacy of such legislative initiatives.
This view is supported and confirmed by judicial precedents in the European Court of Human Rights (ECHR), such as the case of S. v. Italy (47196/21, August 31, 2023) and Paradiso and Campanelli v. Italy (No. 25358/12, January 24, 2017). According to precedent, Article 8 of the ECHR requires national legislation to provide for the recognition of the relationship between a child born via surrogacy abroad and their biological parents.
According to the Plenary of the Italian Supreme Court, adoption allows courts to comply with Article 8 of the Convention and to prioritize the best interests of the child. This is consistent with Italian Law No. 184 of 1983, Article 44, "The Child's Right to a Family."
The issue of surrogacy in Italy remains one of the most debated and controversial topics. The strict restrictions established by Law No. 40 of 2004, along with the recently introduced amendments, have drawn sharp criticism from experts, international organizations, and Italian citizens. Mass protests, court rulings in favor of surrogacy, and active public pressure have led to the filing and consideration of the first appeals against the amendments to Law No. 40 banning surrogacy.
Under these circumstances, there are positive grounds to believe that Italian authorities may reconsider the amendments, taking into account national values, international legal obligations, and the right of Italian citizens to exercise their reproductive rights in the context of contemporary realities.