By Meiraf Tesfaye, Michel Rouleau-Dick and Angelica Conti
Gestational surrogacy has long been a hot topic in Europe owing to the moral and ethical issues surrounding it. Sometimes framed as legalised human trafficking by opponents, surrogacy may be the only viable path for some couples to become parents. Many Council of Europe (CoE) States either ban or strictly regulate the practice which has increased residents’ procreative tourism for international surrogacy arrangements (ISAs). The European Court of Human Rights (ECtHR/ the Court) plays a critical role in interpreting rights of Europeans to access ISAs and State obligations following such arrangements.
Of the CoE States that regulate gestational surrogacy directly or via laws governing legal parenthood, Italy stands out as being particularly opposed to surrogacy. In 2004, Italy criminalised surrogacy carried out in its territory with Law 19 February 2004, n. 40. More recently, Law No. 169 of 4 November 2024 (“new law”) came into force, amending Article 12 para. 6 of the previous law and criminalising all ISAs carried out by Italian citizens abroad.
In this blog we will situate this recent amendment in the Italian discourse, explore how Itay’s indiscriminate criminalisation of ISAs lives up to its obligations under the ECHR and the amended EU Anti-trafficking Directive. We then investigate the gaps left by Italy’s new regulatory framework in relation to the prevention of statelessness.
Italy’s stated purpose
Put simply, the objective of the new law is to rein in procreative tourism for the purpose of ISAs, which are often used as a means to overcome the prohibition to surrogacy in Italian territory. When introducing the bill to the Chamber of Deputies, its proponents stressed the perceived commodification of both surrogate mothers and children born through this practice, which they framed as a “business”.
During the discussion in the Senate prior to its final approval, members of the majority highlighted that ISAs “undermine human relationships, interrupt the biological bond and reduce the woman’s body to a reproduction machine.” The commodification of conception and humiliation of women’s dignity is often used as the main argument against ISAs. The prohibition of surrogacy is argued to serve “to protect the rights of children and preserve natural laws”. Human dignity had also been mentioned by the Joint Chambers of the Italian Supreme Civil Court in Ruling no. 38162/2022 as one of the core values breached by surrogacy, which is used to justify its criminalisation as contrary to the public order.
The ECtHR case law
The new law, which is essentially an extraterritoriality clause, can also be problematised given Italy’s obligations in relation to ISAs under Article 8 of the ECHR. Indeed, in S.H. and Others v. Austria [GC], the ECtHR determined that the wide margin of appreciation under this provision allows States to prohibit domestic practice of surrogacy. However, infertile persons’ right to conceive a child and to make use of medically assisted procreation for that purpose in another State is generally protected under the same provision (paras. 82, 114). In Mennesson v France, the Court clarified States have a general obligation to provide a possibility for recognition of the relationship legally established in another State only when a genetic link exists between the surrogate child and either of the intending parents (IPs). The reasoning for the distinction is the importance of biological parentage as a component of the child’s identity (paras. 96-100, and Advisory Opinion at para. 39).
When it comes to the right of IPs to introduce a minor with no genetic link the Court, in Paradiso and Campanelli v. Italy [GC], clarified that States enjoy a wider margin of appreciation because a particularly important facet of the child’s existence or genetic identity is not at stake (paras. 182, 195 and Dickson v. The United Kingdom, para. 78). Accordingly, States may restrict access to ISAs where there is no genetic link with the surrogate child using domestic law. States may also remove a non-genetic surrogate child from IPs in response to the violation of such restrictions under Article 8(2) (paras. 185-203). It is note-worthy that the heart of the Paradiso case was neither surrogacy itself nor its legality under the ECHR. It was rather the absence of a genetic link between either of the IPs and the surrogate child that led to the latter’s removal from their custody. The Court came to this decision by focusing on the applicants’ violation of the adoption law governing the right to introduce a foreign minor with no genetic link (paras. 63-67).
In C v. Italy, Italy failed to convince the Court that States must have the choice to refuse legal recognition following ISAs irrespective of genetic link based on the practice of surrogacy itself being contrary to public morals (paras. 6-23, 65-67). The surrogate child in the ECtHR application complained of Italy’s refusal to recognise her paternal genetic link and Ukrainian birth certificate which resulted in years of statelessness and with no established filiation, uncertainty as to her personal identity since birth. The Court rejected Italy’s argument and reiterated its position (Mennesson v. France para. 99 and Advisory Opinion para. 39) that the child’s right to have genetic identity recognised outweighs a State’s desire to deter its nationals from using ISAs.
In a partially dissenting opinion to the judgment in C v. Italy, Judge Wojtczek opposed the majority’s finding that there was a violation of Article 8, recalling the Court’s failure to address the inconsistency of surrogacy with the values underlying the Convention in Paradiso, stating:
…it is appropriate to recall paragraph 6 of the text of the joint concurring opinion of Judges De Gaetano, Pinto de Albuquerque, Wojtyczek and Dedov, appended to Paradiso and Campanelli:
We believe that surrogacy, whether paid or unpaid, is not compatible with human dignity. It constitutes degrading treatment not only for the child but also for the surrogate mother. (…) Such a practice is not consistent with the values underlying the Convention.
We believe that surrogacy, whether paid or unpaid, is not compatible with human dignity. It constitutes degrading treatment not only for the child but also for the surrogate mother. (…) Such a practice is not consistent with the values underlying the Convention.
There is an increasing urgency to adopt effective measures in Council of Europe member States and at international level to prohibit the practice and to impose sanctions against those who use it.
— para. 5, partially Dissenting Opinion
It remains for the ECtHR to determine the legitimate aims Italy pursued, but the Senate’s reasoning seems to echo the approach of the separate opinion above. By categorising all ISAs as crimes that ‘undermine human relationships, interrupt the biological bond and reduce the woman’s body to a reproduction machine’, Italy no longer considers surrogacy as a violation of public policy but a violation of international law. By doing so, recruitment or use of such services would come under Article 4 of the ECHR.
While the premise is correct (Article 4 ECHR does entail an obligation on parties to criminalise trafficking in human beings), Italy’s indiscriminate criminalisation goes beyond the more targeted framework applicable to trafficking, which requires an act to be committed using illegal means for the purpose of exploitation. With no consensus among CoE States that all surrogacies are malum in se, this argument does not hold water. Notwithstanding the prerogative of States to regulate certain services within their jurisdiction, the rights of children coming out of legally established parent-child relationships must be prioritised.
The EU’s regulatory efforts
The complex balance between the prevention of trafficking and the protection of identity rights in relation to ISAs has also attracted the attention of EU regulators. Indeed, “exploitation of surrogacy” was recently added to the list of crimes amounting to trafficking in human beings. Concretely, this obliges EU States to take preventive, protective and punitive measures against exploitative surrogacy, both domestically and abroad.
Unlike the relative silence of the ECtHR, the EU Commission clarified the scope of the new Directive, stating it does not criminalise surrogacy but rather criminalises surrogacy in the context of trafficking. This shines an even harsher light on Italy’s blanket approach to ISAs, which renders surrogate children stateless in complete disregard of their genetic or legal identity.
Rather than preventing trafficking, the new law institutionalises children by removing them from their ‘trafficker’ IPs. Ironically, children in institutions are one of the most vulnerable groups to trafficking in persons (Directive (EU)2024/1714, at paras. 7, 15 and 33). To briefly return to Italy’s obligations under the ECHR, the new law may also be in violation of Article 8 ECHR for arbitrarily rendering surrogate children stateless. Although the right to citizenship is not, as such, guaranteed by the ECHR or its Protocols, it is not excluded that an arbitrary denial of citizenship can be a violation of Article 8 (see here).
Heightened risk of child statelessness
This is also true with regards to Italy’s international obligations in relation to the prevention of statelessness. Since countries where surrogacies take place may not necessarily acknowledge a parental link with the surrogate if there is no genetic connection, children born from ISAs may find themselves solely reliant on the country of nationality of their parents to be granted nationality. If the parental link is recognised, there is usually no issue since Italy’s nationality law operates on the jus sanguinis principle, i.e., nationality is transmitted through parental link. Owing to the new law, however, this genetic link no longer enjoys legal protection as the IPs are now considered criminals under Italian law. With no viable connection to the State, surrogate children will likely become stateless, meaning “not considered as a national by any State under the operation of its law”.
One would expect that the 1961 Convention on the prevention of statelessness (“1961 Convention”), to which Italy became a party in 2015, would fill the gap, since it puts an obligation on Italy to grant its nationality to children that would otherwise be stateless if they are born in Italian territory (Art. 1.1). However, as children born from ISAs are born abroad, the obligation on Italy shifts to rely on the parental link under Article 1.4, which applies instead. Namely, Art. 1.4 states that Italy shall grant its nationality to persons who would otherwise be stateless, even if born outside of Italy, as long as one of their parents was an Italian national at the time of the person’s birth and they are not eligible for the nationality of the country they were born in. Unfortunately, even if this possibility exists, implementation is not automatic and requires the parents to act proactively. These inadequacies compound the blind spot of the 1961 Convention in relation to ISAs previously identified by van Waas (p. 84).
Considering the devastating impacts of statelessness on a child’s life and (ironically) the heightened risk of trafficking it entails, Italy must consider how it regulates the complex and sensitive issue of ISAs more carefully, as indiscriminate criminalisation of all ISAs stretches States’ margin of appreciation too thin. The impossibility to legalise surrogate children’s genetic identity through transcription (i.e., registration of birth details drawn up in a foreign State) or adoption leaves an unacceptable gap that is likely to result in multiple cases of statelessness. Italy’s haphazard regulation of ISAs also highlights shortcomings of the law on the prevention of statelessness that had already been noted before Italy’s enacting of Law No. 169.
Conclusion
Italy’s new attempt at regulating ISAs seems to reflect a political trend more than an effort at regulating what is a complex and nuanced phenomenon. Despite being seemingly informed by the ECtHR’s jurisprudence, the new Italian law has been critiqued as an attempt to prioritise conservative values despite circumventing the boundaries set by the court. This is regrettable since it comes with a serious risk of obfuscating some of the very real risks of trafficking that exist in relation to ISAs.
Regulating ISAs is not a simple endeavor. It requires a careful balancing act, especially since the stakes are so high for the intending parents and the children conceived through ISAs. The protection of those most vulnerable should always be the priority, regardless of one’s moral stance on ISAs.
Meiraf Tesfaye is a Doctoral Researcher in Public International Law at the Institute for Human Rights, Åbo Akademi University.
Dr Michel Rouleau-Dick is a postdoctoral fellow at the Centre for Transdisciplinary AI (TAIGA) at Umeå University and is affiliated with the Department of Law, UmArts and the School of Architecture. He is also co-editor in chief of the Talking Rights blog.
Angelica Conti is a Doctoral Researcher in Public International Law at the Institute for Human Rights, Åbo Akademi University.