Italy : Surrogate motherhood considered as a crime including abroad
Major progress was achieved in the fight against surrogate motherhood, on the eve of the European Day for the fight against human trafficking. On 16th October 2024, the Italian Senate definitively adopted a law, previously adopted on 26th July 2023 by the Italian Parliament, extending the prohibition of surrogate motherhood to those conducted abroad.
With this law, Italy is taking a first concrete step towards an international convention for a worldwide prohibition of surrogate motherhood.
The practice of surrogate motherhood has been legally prohibited in Italy since 2004. The law dated 19th February 2004 concerning assisted reproductive technology (ART) specifies that the practice and organisation of any form of substitute maternity as well as the corresponding publicity are prohibited. The penalty ranges between a prison sentence of three months to two years and a fine of 600,000 to 1 million euros. The law adopted on 16th October extends the offence and penalty to Italian citizens who practice it abroad, irrespective of whether or not the foreign state authorises it.
The Italian Government has over the years and on several occasions expressed its opposition to substitution maternity or surrogate motherhood, in particular through appeals to the European Court of Human Rights (ECHR) “for the need to protect women and to safeguard the interests of the child”. This position was recalled during requests for transcription of birth certificates of children born through surrogate motherhood (D vs. Italy) or also the Paradiso case for which the ECHR ruled in favour of the Italian Government, on appeal.
The Italian position is in line with the movement for the awareness of the gravity of this practice which has been developing over the last ten years against the exploitation of the bodies of women and human trafficking.
In 2013, the fate of Gammy, a baby boy suffering from Down’s syndrome caused a stir worldwide. Contracted by an Australian couple through a Thai surrogate mother, the baby boy was finally “rejected” by the couple who accepted only his twin sister.
Subsequently, several states have either prohibited or strongly restricted the practice of surrogate motherhood in particular for foreigners: India, Thailand, Nepal, and Mexico etc.
In 2016, thanks to a strong mobilisation by various players as well as the No Maternity Traffic coalition, of which Alliance VITA was a partner, the Parliamentary Assembly of the European Council rejected a recommendation on surrogate motherhood which would have opened the way towards the authorisation of certain so-called “altruist” types of surrogate motherhood versus “lucrative” surrogate motherhoods. In the end, the draft recommendation adopted condemns all forms of surrogate motherhood without distinction.
In 2023, experts from 75 states meeting in Morocco signed the Casablanca declaration for the worldwide abolition of surrogate motherhood. The group is taking an active part in the mobilisation of international authorities with a view to establishing an international convention.
In 2024, the European Union reached a major stage with the revision of directive 2011/36/UE on the fight against human trafficking. Surrogate motherhood for the purpose of reproductive exploitation, has been added to the list of human trafficking crimes together with illegal adoption and forced marriage.
