Ashley Mantha-Hollands (European University Institute)
On 16 October 2024, Italy passed a law that would make it illegal for couples to go abroad to have a baby through an international surrogacy arrangement. The law, approved by the senate with 84 votes in favour and 58 against, would make surrogacy a “universal crime” and could fine couples up to one million euros and a two-year jail sentence. Italian lawmakers have claimed that the law is not intended to harm children but to penalise parents who have engaged in this activity. Yet, since the practice of surrogacy became illegal domestically in 2004, couples have faced an increasing number of challenges when attempting to register their children at local municipalities – affecting these children’s ability to acquire Italian citizenship.1
With the new law in force, there are at least two scenarios where families could be left in a ‘legal limbo’ regarding Italian citizenship acquisition:
First, imagine an Italian couple who travels to Georgia to engage in a surrogacy arrangement. The child is born in Tbilisi, where they do not have access to citizenship by virtue of birth in the country’s territory. The couple attempts to register the child with the Italian consulate in Tbilisi and are denied registration because of the illegality of birth modality. The couple and their child will be effectively unable to acquire the necessary travel documents for the child. If the parents are then prosecuted and jailed for engaging in the arrangement, the child will be left in legal limbo without a clear legal status or parental care. The child will likely be placed in protective services in Georgia or placed up for adoption.
A second scenario presents other challenges. Suppose an Italian couple travels to California to sign a surrogacy contract. Their child is born and receives American citizenship at birth (ius soli). In this case, the couple can travel back to Italy using the child’s U.S. passport. Once in Italy, the couple is denied registration of the child at the municipal authority, a crucial step in the acquisition of Italian citizenship. The child is, therefore, unable to stay in Italy (or the EU) for longer than the six-month period allocated upon entry. Furthermore, the Italian parents are unable to stay in the U.S. without legal residency status. The family would then be required to apply for EU family reunification – however, this can be extra challenging for LGBTQ+ couples whose partnerships and parentage are not recognised across the board in the EU. Overall, the family would be left in a state of uncertainty and precarity.
The issue of denying citizenship acquisition for children born through surrogacy has been presented in the European Court of Human Rights (ECtHR) as a violation of Article 8 of the European Convention of Human Rights, which states that “everyone has the right to respect of his private and family life, his home and his correspondence.” This must be balanced with the right of public authority to interfere in cases of “national security, public safety, economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Striking this balance has proved challenging for the Court. The Court’s decisions have varied on a case-by-case basis. For example, in Mennesson v. France (2014) and Labassee v. France (2014) the surrogacy arrangement had happened in the United States where the parent-child relationship had been legally established at birth (like in Italy, surrogacy is also illegal in France). French authorities refused to recognise the parent-child relationship despite the biological tie between the child and the French parent, denying the child access to French legal status. In these two cases, citizenship as legal status played a central role. The Court decided that the French authorities had violated Article 8, specifically concerning the child’s right to a private life – where legal identity within French society was a key component to the Court’s interpretation of “private life.”
Other cases have been less successful. In Valdís Fjölnisdóttir and Others v. Iceland, an Icelandic couple had a child via a legal surrogacy arrangement in the United States. The intended parents had used a donor egg and donor sperm as well as a gestational surrogate. When the child was born, they complied with all the regulations under California law and were named as parents of the child on the birth certificate. They were subsequently not recognised as the parents in Iceland, where surrogacy is illegal when they applied to have the child’s birth certificate registered. The Icelandic authorities stated that the child was considered a foreign citizen and would not be awarded Icelandic citizenship. The couple eventually filed a complaint to the ECtHR. The Court decided that there was no violation of Article 8 as Iceland had acted within its discretion, and there had been sufficient basis in domestic law to do so. The child, a U.S. citizen, was attributed the status of “unaccompanied minor” in Iceland until the parents were able to formally adopt them.
In Paradiso and Campanelli v. Italy, the intended parents were also unsuccessful in challenging the Italian authorities on their decision to remove their nine-month-old child (born from a legal surrogacy arrangement in Moscow) from the parents and place it in the care of social services. In this case, the couple had used the genetic material of the intended father and a donor egg as the intended mother was unable to conceive. However, upon return to Italy, they were unable to prove that the child was genetically related to the father. This kicked off a fraud investigation by the Italian authorities. The couple filed a complaint to the ECtHR after exhausting all legal remedies in Italy. The Court ruled there had been no violation of Article 8, as due to the short duration of the familial relationship, “family life” between the couple and the child had yet to be established. The child was put up for adoption.
The emergence of the new Italian law could bring more cases in front of the ECtHR from families looking to protect their children through Article 8. Yet the handful of cases presented to the Court do not provide a definitive answer that safeguards families or their children. Some scholars have argued that this has constituted a form of citizenship deprivation. The problems are exacerbated for children born to LGBTQ+ couples who may not be able to be recognised as legal parents in the country in which the surrogacy arrangement took place. In fact, the Italian law is part of a series of policies across Italy to encourage heterosexual couples to have children via coitus while discouraging non-coital forms of reproduction for non-heterosexual couples.2 LGBTQ+ couples (as well as single women) are not allowed to access any other alternative reproductive technologies (such as IVF) or adopt children in Italy.
- Italy follows a ‘familistic’ citizenship model, which in practice means that it has a generous system of jus sanguinis where citizenship is easily passed by descent from one generation to the next. If a birth happens within Italy, the parent(s) must declare the birth at the registrar of births (Ufficiale di Stato Civile) of the municipality. Once complete, the municipality will issue a formal birth certificate and provide the appropriate documentation to apply for a passport. If the birth happens abroad, the Italian parent(s) must take a certified copy of the birth certificate, a registration form, and a copy of the parent(s)’ passport to the appropriate consulate for processing. The consulate will register the birth and transmit the information to the municipality in Italy (usually at the parent’s last place of residence), which will transcribe the birth into its records. ↩︎
- Meloni once summarized her position by saying: “Yes to the natural family, no to the LGBT lobby, yes to sexual identity, no to gender ideology.” ↩︎