The Criminalization of Surrogacy in Italy: Legal Framework, Ethical Tensions, and European Perspectives.

Abstract

Objectives: Surrogacy remains one of the most contentious topics in contemporary reproductive law, sparking intense debate across legal, ethical, and social spheres. In Italy, the recent introduction of universal criminal jurisdiction has considerably tightened the regulatory framework, extending criminal liability to acts committed abroad by Italian citizens. This legislative development raises significant concerns, particularly in relation to the principles of legality, proportionality, and harm, as well as its implications for safeguarding the best interests of the child. This article explores the risks posed by a strictly punitive approach, contrasting the Italian model with those adopted in other European jurisdictions. Particular attention is paid to the rights of surrogate mothers, the legal recognition of family relationships, the child's right to know their origins, and the legal status of the embryo. The analysis highlights how the absence of a balanced regulatory framework can increase vulnerability and legal uncertainty for all parties involved.

Materials and methods: This study draws upon jurisprudence from the Italian Constitutional Court, the Court of Cassation, and the European Court of Human Rights, as well as legislative developments and practices in various European legal systems. A systematic literature review was conducted using the Italian legal database De Jure and the international database Scopus. Keywords included: surrogacy, universal criminal jurisdiction, best interests of the child, intentional parenthood, Italian Constitutional Court, and assisted reproductive technologies (ART). Duplicate records were excluded, and all relevant sources were thoroughly reviewed. The research scope was further expanded by incorporating cited references from primary literature.

Results: The extraterritorial application of criminal sanctions raises several critical issues: it challenges the principle of legality, diverges from prevailing European legal standards, and complicates the recognition of family ties in cases involving children born through surrogacy. Moreover, this punitive framework risks obscuring the altruistic and therapeutic dimensions associated with ART. When properly regulated, altruistic and informed surrogacy may offer an ethically acceptable solution for individuals facing profound reproductive challenges.

Conclusions: This article argues for moving beyond a predominantly punitive stance on surrogacy. It advocates for a regulatory framework that clearly distinguishes between commercial and altruistic surrogacy, protects the rights of surrogate mothers, ensures transparency and informed consent, and guarantees full legal and emotional recognition of children. Only a rights-based, inclusive approach can adequately address the multifaceted nature of the surrogacy phenomenon.