Experts laud Italian ban on surrogacy abroad as step toward universal abolition

Vatican City, Dec 5, 2024 / 10:00 am (CNA).

In October, Italy became the first country to ban surrogacy for its citizens both within and without its borders — a legal move that could be replicated in other nations, according to experts.

“For us, Italy is an example to follow for other countries,” Bernard Garcia Larrain, a lawyer and international anti-surrogacy advocate, told CNA.

Garcia Larrain is the coordinator of the Casablanca Declaration, an international group calling for the abolition of surrogacy worldwide.

On Oct. 16, Italy’s Senate passed a bill making it possible to prosecute Italian citizens for pursuing surrogacy abroad. The practice was already a crime within Italian borders.

Garcia Larrain told CNA that national regulation of surrogacy is not enough, because surrogacy “is a global market,” which is why the group he coordinates is calling for its universal abolition for the protection of children and women.

In the meantime, however, the lawyer said Italy has taken a good first step that he hopes other countries will follow.

“Italy is a good example, but now countries like Italy have to join our movement to call for an international treaty [banning surrogacy],” he said.

Surrogacy has been illegal in Italy since 2004. The prohibition is contained within the country’s Law 40, which regulates medically assisted procreation.

Under the recently passed law the Italian state will be able to prosecute its citizens who seek surrogacy even in countries where it is legal.

In an Oct. 16 press release, the Casablanca Declaration applauded Italy’s decision, calling it “a major step forward in the universal abolition of surrogacy.”

“Italy is showing the way forward for all the other countries that have not yet dared to take initiatives to protect women and children from surrogate motherhood,” the group said.

Italy’s wider ban on surrogacy has been frequently referred to by media and elsewhere as a “universal crime.”

Giorgio Mazzoli, the director of U.N. Advocacy for Alliance Defending Freedom (ADF) International and an expert in public international law and international human rights law, explained that the term “universal crime” is a legal misnomer, and the Italian law is actually based on a “more narrowly defined form of extraterritorial jurisdiction.”

Mazzoli has done anti-surrogacy advocacy since 2017 and was among the first to speak out against surrogacy and for a universal ban on the practice at the United Nations. He explained more about the legal implications of the ban in a written interview with CNA.

The full interview can be read below:

CNA: What does the extension of Italy’s law banning surrogacy do, practically speaking? What might enforcement look like?

Mazzoli: Before the adoption of the new law, Italian legislation did not impose sanctions on maternal surrogacy arrangements commissioned by Italian citizens outside national borders. This allowed couples to circumvent domestic prohibitions by entering into surrogacy agreements in jurisdictions where the practice is permitted or tolerated, and subsequently requesting the legal recognition of parentage for children born through these arrangements. The new law closes this loophole by extending criminal penalties to surrogacy arrangements carried out abroad by Italian citizens. Italian citizens who commission surrogacy in other countries will now be prosecuted under Italian law.

The primary mode of enforcement is without a doubt deterrence: By establishing that surrogacy will be punished regardless of where it occurs, the law aims to dissuade individuals from engaging in such practices in the first place. In practical terms, enforcement is closely linked to the existing legal requirements for the recognition of parentage for children born through surrogacy, which include the need to ascertain the child’s origins. This framework, combined with increased scrutiny of intermediaries and clinics promoting surrogacy abroad, should empower Italian authorities to identify and investigate cross-border cases effectively.

CNA: What does the term “universal crime” mean?

Mazzoli: The term “universal crime” is a legal misnomer and should not be confused with universal jurisdiction, which allows states to prosecute specific grave offenses regardless of where they occurred or the nationality of those involved. However, Italy’s law banning surrogacy abroad is not based on universal jurisdiction. Instead, it relies on a more narrowly defined form of extraterritorial jurisdiction, which enables Italian authorities to prosecute their citizens for commissioning surrogacy arrangements outside the country.

CNA: What are the legal limits of Italy’s new ban on surrogacy outside its borders, if any?

Mazzoli: While surrogacy has been prohibited domestically in Italy since 2004, the new ban on surrogacy abroad does not cover the conduct of non-Italian citizens due to reasons of jurisdiction.

CNA: Could Italy be an example for other countries on how to totally ban the practice of maternal surrogacy?

Mazzoli: Yes. As the first country in the world to ban surrogacy outside its borders, Italy could serve as a model for countries determined to combat this deeply unethical, inhumane, and exploitative practice, which turns children into commodities and women’s reproductive capacities into tools for others’ desires. However, addressing the full scope of this human rights issue requires a unified global response. That is why I, along with many human rights experts and organizations, have long been advocating for a universal ban on surrogacy in all its forms.