The newly enacted Italian surrogacy law: Effects on reproductive tourism

In Italy, Law No. 169 of November 4, 2024, has come into force, criminalizing surrogacy even if it occurs abroad, provided at least one member of the requesting couple is an Italian citizen. This legislation stems from a firm conviction that surrogacy undermines the dignity of the surrogate mother and places the child thus born in a more precarious situation, compared to a child born to a mother who intends to raise them as her own. The authors have set out to outline a brief overview of surrogacy legal frameworks in Europe and in the USA, as a meaningful sample of Western countries largely sharing a common set of values. The ultimate purpose is to assess the potential effectiveness of this new extremely restrictive Italian law in dissuading Italian couples from seeking surrogacy abroad.

First-hand sources (national legislative bodies) have been delved into to shed a light on national norms governing surrogacy in major European countries and the USA. Databases De Jure and Onelegale, along with international scientific databases PubMed and Scopus, were drawn upon through the search terms/strings: surrogate motherhood; surrogacy; extraterritorial jurisdiction.

This law's consistency with European Court of Human Rights (ECtHR) jurisprudence and European Union law is dubious: it in fact appears to conflict with freedom of movement within the European Union and the child's best interests. Moreover, while it may hinder the pursuit of parenthood, its effectiveness in preventing reproductive tourism is still unclear.