After US ruling, Italy's ban on overseas surrogacy targets same-sex couples

For nearly four decades, people suffering from infertility and same-sex couples have turned to in vitro fertilization and surrogacy to start their families.

These options have come under legal attack recently, as religious concerns have spurred policymakers to add new restrictions.

In the United States earlier this year, Alabama’s Supreme Court ruled that frozen embryos created through In vitro fertilization (IVF) should be legally considered children, temporarily halting the procedure in the state until a public outcry led lawmakers to restore access.

Then, in October, Italian lawmakers voted to extend the state’s already draconian ban on surrogacy beyond its borders, criminalizing the procedure for Italians who leave the country to have a baby through a surrogate overseas.

The role of ideology

Supporters say that this law is necessary to protect the dignity of women and childbearing, but its effects will most likely be felt most acutely by LGBTQ+ couples. 

That’s because opposite-sex couples who have a child through a surrogate abroad can often get a birth certificate from that country that matches their names and does not include the surrogate’s, making it virtually impossible for the government to prosecute. That option is not available for gay fathers.

The law has come about in part because of the heavy influence in the country of the Catholic Church, which has long opposed surrogacy because it severs the ties between conception and birth and because the process of IVF can lead to the destruction of leftover embryos, which the church views as akin to abortion. 

A similar logic was involved in the Alabama court decision, which concerned the accidental destruction of frozen embryos. The judges held that for legal purposes, the embryos created through IVF should be considered children, which made it effectively impossible for the clinics to consider even routine handling of frozen embryos due to the legal risk. A change in state law later gave immunity to the clinics but left some key questions unresolved.

In the case of the Italian law, anti-LGBTQ+ sentiment is also a factor.

Some supporters have made that clear, as the author of the anti-surrogacy bill wrote on Facebook that her party was fighting LGBTQ+ “ideology.” Another lawmaker described the bill as necessary to protect the right of a child to “have a father and a mother.”

Many commentators view the law as part of an effort by conservative Prime Minister Giorgia Meloni to shore up her credentials with her supporters.

The law does not just ban surrogacy abroad. It makes it a universal crime, subjecting an intended parent who breaks the law with a jail sentence of up to two years and a fine of up to 1 million euros. 

Implications of Italy’s surrogacy ban

As lawyers who work on surrogacy and other family law issues in the U.S. and Italy, we studied the law and have found it full of unanswered questions that could put LGBTQ+ couples at risk for simply wanting to start a family.

Italy is not alone in having a surrogacy ban. While some U.S. states and other countries allow surrogacy in any circumstances, others permit it only under specific conditions. Along with Italy, Spain, France, and Germany have total bans on surrogacy.

Italy’s domestic ban, which dates to 2004, covers any form of sale of gametes or embryos as well as the practice of surrogacy.

The expanded ban, which passed on Oct. 16, extends to Italian citizens who use surrogacy even in a country where it is legal, though the criminal penalties and other legal consequences only come into play when they return to the country.

The measure was designed to fight what is known as ‘fertility tourism,’ which has previously allowed many couples to circumvent the domestic ban. 

But questions remain: what happens to Italian couples living abroad who have a child through a surrogate in a country where it’s legal? Are they effectively barred from returning home by the potential criminal charges? 

Will Italian authorities investigate births abroad in search of potential surrogacy cases? Or will this kind of scrutiny only apply to same-sex couples who relied on a surrogate? And will countries such as the U.S. and Canada cooperate with any investigations?

Even some basic questions are hard to answer. It is difficult to estimate the number of Italian citizens who could be affected by this legislation because the domestic ban has already made it a taboo topic. 

One estimate we consider reliable is that approximately 250 Italian couples go abroad every year to specialized clinics for surrogacy procedures. The statistics indicate a significant demand that is being met abroad.

The criminalization of surrogacy will come into conflict with other human rights, including the right to procreation, the right to health, the right to non-discrimination, and the right to privacy are just a few that will be affected by the coming case law.

The surrogacy ban casts a wide net. The law currently punishes the "implementation," "organization," and "promotion" of surrogacy, whether practiced within Italy by anyone or abroad by Italian citizens. 

This wording can be interpreted very broadly, making it easy to imagine scenarios where the provision could be violated. In fact, behaviors subject to punishment include those of the surrogate mother, those of the intended parents, and those who in any way facilitate their contact. With the expansion of the law, that now includes anyone involved in a surrogacy overseas as well.

Broader rights at risk

Overall, LGBTQ+ rights have been a hot topic in recent years. At times, that has included more recognition, as when the country legalized civil unions for same-sex couples in 2016. Still, Italy is one of only a handful of members of the European Union that do not recognize same-sex marriage, recognizing same-sex couples and treating them with dignity and equality under the law.

Even if the ban is only rarely enforced, the threat of jail time and massive fines will be substantial enough to keep many same-sex couples in Italy from pursuing their dream of starting a family. 

Despite this progress, many conservative governments and political factions have historically opposed LGBTQ+ rights, often citing traditional family values. The current government has shown a more conservative stance, which has influenced the issues around LGBTQ+ rights. 

That has been clear even in smaller fights, including a dispute over whether an adult could be listed as “parent” rather than “father” or “mother” on children’s ID and a fight over whether birth certificates could list two mothers for children born to lesbian couples.

Though consequential, these disputes were minor in comparison to the ban on overseas surrogacy with its potential criminal charges. It’s clear that the current Italian government is seeking to roll back some of the progress made in the country toward LGBTQ+ rights. 

This may leave Italian gay couples with no choice but to come to California, have a child, and then seek asylum on the grounds that they would be prosecuted for simply wanting to start a family—a basic human right.

Alphonse Provinziano is a longtime U.S. family lawyer based in Los Angeles, California, and founder of Provinziano & Associates, where he and his team specialize in international family law cases, including those involving LGBTQ+ families. www.provinziano.com 

Alessandro Gravante is an Italian lawyer and Senior Partner at Giambrone & Partners, an international law firm based in Milan with a well-known LGBTQ+ division and extensive experience in family law. www.giambronelaw.com