Full/Gestational surrogacy is Medically Assisted Procreation (MAP) methods where a woman (the gestational carrier/surrogate) via in vitro fertilization (IVF), carries a baby genetically unrelated to her in lieu of a single person/couple with the latter intending to be the child’s legal parent(s). Referred to as intending parents here, they may use their own gametes, donor eggs and/or sperm depending on the type of infertility. Partial/traditional surrogacy, abandoned by most surrogacy-friendly States, involves the same process using the ovum of the gestational carrier.
In October 2024, Italy became the first country to criminalize surrogacy tourism by extending the application of law 40/2004 that criminalises all forms of surrogacy on Italian soil to all nationals seeking surrogacy services abroad. The push for Law No. 169 of 4 November 2024 came from the Italian Prime Minister Meloni’s conservative government who labelled surrogacy by gay couples as ‘worse than paedophilia.’ This move sparked international outrage with critiques and activists slamming the move as ‘medieval.’ Many believe that Italy has gone a step too far raising constitutionality issues, especially in relation to the prohibition of discrimination as well questions of dual incrimination for offenses committed abroad where they are not a crime.
This post examines the reform in light of the European Convention of Human Rights (ECHR)since the European Court of Human Rights (ECtHR) has addressed whether prohibition under domestic law on the use of certain MAP methods violates Article 8 of the Convention in the case of S.H. and Others v. Austria [GC].
After a brief summary of the Italian criminal law on surrogacy and the reform, this post analyses the ECtHR’s finding in S.H. and Others v. Austria[GC] to determine whether Italy can prevent its nationals from a child by use of surrogacy in a jurisdiction where the practice is legal.
It is important to note that the new law does not actually introduce any new criminal sanctions or measures. It rather extends the applicability of the law to all Italian citizens universally. The genesis of Italy’s formal criminalisation goes back 20 years with one of the most extensive prohibitions on use of donor gametes including use of IVF for surrogacy. Italy has criminalised all access to all forms of surrogacy within Italy and imposes a maximum of two years in prison and up to one million euros in fines.
In 2005, just a year after the formal ban, the Italian Fertility Tourism Observatory recorded a 300% rise in international surrogacy arrangements (ISAs) alone. Prior to the latest amendment, though ISAs were not formally banned, returning intending parents (IPs) faced legal problems in getting their legal parenthood documents recognized. The lack of legal certainty in relation to applicable rules in such cases started a pattern of Italian public prosecutors challenging the legal validity of foreign birth certificates acquired by IPs in surrogacy host States and recorded by the registrar. This prompted the conservative government to propose a stricter ban on accessing ISAs in order to further discourage Italians from seeking such services abroad and avoid recognition issues, leading to amendment Law No. 169 of 4 November 2024.
The ECtHR is no stranger to questions surrounding restrictive laws, especially in areas raising sensitive ethical and moral questions where there is no European consensus. In such instances the Court has consistently concluded that member States enjoy a wide margin of appreciation (see for instance Evans v. the United Kingdom [GC]; A, B and C v. Ireland [GC], Christine Goodwin v. the United Kingdom [GC]).
In S.H. and Others v. Austria[GC], two Austrian couples claimed that Austria’s prohibition in its domestic law on the use of ova and sperm from donors for in vitro fertilisation is a violation of Article 8 of the ECHR. They argued that the ban on some procreative techniques freely available elsewhere violates the right of a couple to conceive a child and to utilize MAP techniques for that purpose, as protected by Article 8.
In this case, the Court took a liberal approach in establishing the applicability of Article 8 by concluding that a couple’s right to conceive a child and to make use of MAP methods is indeed protected by Article 8, as such a choice is an expression of private and family life (at para. 82). Whilst the Court established that Austrian law interfered with the right to private life of the applicants protected under Article 8, it concluded that this interference pursued a legitimate aim, namely the protection of health or morals and the protection of the rights and freedom of others and is necessary in a democratic society (see paras. 90, 97 of the judgment).
Although the ECtHR acknowledged that the growing trend of Member States allowing gamete donation reflects an emerging European consensus, it determined that it was not sufficient to reduce the margin of appreciation available to Austria (para. 96). Although lack of consensus among Member States and the sensitive and moral issues raised by the case compelled the Court to provide a wide margin of appreciation to Austria, it did make one important caveat that is decisive to Italy’s reform.
In concluding that Austria’s conservative legislation is not a violation of the applicants’ right to conceive a child by using MAP methods, it states:
‘…In this connection, the Court also observes that there is no prohibition under Austrian law on going abroad to seek treatment of infertility that uses artificial procreation techniques not allowed in Austria and that in the event of a successful treatment the Civil Code contains clear rules on paternity and maternity that respect the wishes of the parents.’ (para. 114, S.H. and Others v. Austria[GC]).’
This is an important inclusion by the Court, as it appears to give infertile persons living in restrictive States the opportunity to make the decision to use MAP methods abroad while granting States freedom to make their own policy decisions on a complex matter with far-reaching scientific, legal, ethical and social implications.
If one follows this line of argument, two conclusions can be drawn: first, as ECtHR case law on surrogacy reaffirms, both the lack of consensus among Member States as well as the sensitive issues surrogacy raises provide Italy with a wide margin of appreciation to adopt restrictive laws (as reflected in law 40/2004). Second and more importantly, by criminalising ISAs, the new reform extending the application of this law to all Italians irrespective of where they seek medical intervention seems to go beyond the margin of appreciation allowed by Article 8 of the ECHR. If the legality of the reform comes before ECtHR, it may also answer the question of whether the reform is discriminatory as the framing of the law seems to apply only to Italian nationals returning to Italy following ISAs, leaving non-Italian permanent residents out of its scope of applicability.
While this may be an idealistic conclusion, it is a certainty that these recent developments at the very least resuscitate the questions the Court addressed in the case of S.H. and Others v. Austria[GC] and their relevance more than a decade later.
Meiraf Tesfaye is an Ethiopian lawyer and a doctoral researcher at the Institute for Human Rights at Åbo Akademi University.
https://doi.org/10.5281/zenodo.14265987
