top of page

The Future of Transnational Surrogacy: Where Do Italy and the UK Stand Now?

By: Ellene Ko



The images of thousands of abandoned babies around the world gave the transnational commercial surrogacy market a global spotlight in 2020 when COVID-19 travel bans hit.[1]  As borders closed, intended parents or “fertility tourists” were unable to claim newborns born to surrogate mothers in Russia, Ukraine, the United States, and elsewhere.[2] Babies were left for months in hospitals, orphanages, or in the hands of surrogacy agencies.[3] “‘The image’—of the [commercial surrogacy] industry— ‘was really bad.’”[4]  Much attention has been paid to the effects of abortion regulation and access to contraception on women’s reproductive freedom. However, the politics of pregnancy through surrogacy legislation, beyond the photos of crying infants and distraught women, is not a commonly discussed topic.


Commercial surrogacy (as opposed to altruistic surrogacy which involves no compensation) is a private contractual arrangement in which the surrogate mother receives compensation from the commissioning parent(s) beyond the reimbursement of medical expenses. The emergence of assisted reproductive technologies fueled the growth of commercial surrogacy to a multibillion-dollar booming industry.[5] The business of “renting wombs” is not limited to geographical or legal boundaries thanks to “fertility tourism”—every year, thousands of would-be parents travel abroad to the handful of countries where commercial surrogacy is legal.[6] 


Many governments around the world have taken diverse measures to avoid the problems of “fertility tourism” in acknowledgment of their own social and cultural context.[7] Surrogacy contracts are illegal or unenforceable in many European countries.[8] The recent legislative moves in Italy and the United Kingdom (UK), where commercial surrogacy is already illegal, show interesting legislative divergence and attitudes towards transnational surrogacy.  


In July 2023, the Italian parliament approved a bill criminalizing people undertaking “disgraceful” transnational surrogacy.[9] All forms of surrogacy, both commercial and altruistic, have been banned in Italy since 2004. The law in question, extending the ban to include surrogacy overseas, is led by the far-right ideology of the present Prime Minister Giorgia Meloni who took power in October 2022.[10] If the bill is passed, Italy would be the first country to legislate the prosecution of persons seeking transnational surrogacy in countries where it is legal, such as the United States or Canada.[11] The current draft proposes Italian citizens who travel abroad to contract with foreign surrogates could face prosecution resulting in up to two years in prison and fines of upwards of €1 million upon returning to Italy.[12] 


The Meloni government’s justifications for the ban under Italian law are rooted in the notion of public policy.[13] The state has an interest in preventing children from being turned into commodities and protecting them from negative psychological and social development from “uncertain maternity.”[14] Another perspective focuses on the potential for exploitation of women as a mere “means to an end,” not a human worthy of dignity and respect under the principle contained in the Italian Constitution.[15] These public interests justify the state’s intrusion into individuals’ reproductive decisions under commercial surrogacy contracts.[16] 


Critics argue that this socially conservative agenda of Italy’s ruling majority, led by a self-declared enemy of “gender ideology,” is problematic in terms of international law because the law in question criminalizes a practice that is perfectly legal and regulated by strict laws in countries that are certainly not “rogue states” from international perspective.[17]  Given the outright majority of conservative parties, the new legislation criminalizing transnational surrogacy in Italy is expected to pass and become law.[18] 


While Italy’s legislation criminalizing surrogacy is in tandem with a growing trend across European right-wing movements, what is happening in the UK seems revolutionary in a different form from its Mediterranean neighbor. The UK retains its progressive approach to altruistic surrogacy by allowing the practice but bans commercial surrogacy domestically.[19] Consequently, intended UK parents are increasingly seeking transnational surrogacy arrangements (certain U.S. states are popular) where it may be possible to access a surrogate with ease within a more robust legal framework and with a professional agency to manage the entire process.[20] It has been estimated that as many as 500 children might be born through surrogacy in the UK or to UK parents every year.[21] About half of these children result from arrangements involving surrogates based abroad.[22] 


In March 2023, the Law Commission of England and Wales and the Scottish Law Commission proposed a draft bill —a new surrogacy law reform with a revolutionary aim to change the “archaic” surrogacy landscape.[23] It has been recognized that the UK’s Surrogacy Act failed to provide the right level of protection for all parties involved. As it stands now, intended parents using surrogacy must wait at least six weeks or up to one year after the birth of a child to become a child’s legal parents.[24] The reform aims to expand the rights of intended parents by allowing them to gain legal custody of the child at birth.[25] This means that the post-birth process is minimal without the worry about a child left stateless, the legal limbo that surrogate babies have been born into in the UK. The reform also recommends helping intended parents bring children born to surrogate mothers overseas home to the UK more quickly.[26] These include enabling intended parents to begin the application process for passports and visas before birth, although the formal application would not be able to be made until after the child had been born.[27] 


It is hailed as a big step in the right direction. These reforms are expected to provide more safeguards for surrogates as well as for intended parents. A more streamlined process provides greater certainty and expectations for the parties involved and ultimately will benefit the children born via this route and their families.[28] The changes are intended to create a more regulated surrogacy system in the UK to dissuade intended parents from opting for international surrogacy agreements, which can bring a greater risk of exploitation for women and children.[29] It is now up to the UK government to consider whether the Law Commission’s recommendations should become law.


The debate around surrogacy illustrates the challenge of reconciling deeply held views and values in a context where political polarization is emerging. Issues at stake include identity, autonomy, family unit, the status of women, and the welfare of future children. The legislative project underway in Italy and the UK is not just of interest to these countries. Still, these laws may have far-reaching implications for the wider global community as the demand for transnational surrogacy grows. Italy’s intended criminalization of transnational surrogacy and the UK’s introduction of a new regulatory pathway show that political decisions affect every aspect of people’s lives. So what happens next? The two governments’ decisions are sure to attract transnational attention.


Ellene Ko is a Staff Editor at CICLR.


[1] Lizzie Widdicombe, The Stranded Babies of the Coronavirus Disaster, The New Yorker (July 20, 2020), https://www.newyorker.com/news/news-desk/the-stranded-babies-of-the-coronavirus-disaster [https://perma.cc/8Q6Z-GTYF].

[2] Id. 

[3] Id. 

[4] Id. 

[5] Id. 

[6] Id.

[7]  Pedro Brandão & Nicolás Garrido, Commercial Surrogacy: An Overview, 44 Federação Brasileira de Ginecologia e Obstetrícia 1141, 1147 (2022) (Braz.). 

[8] Id. 

[9] Angela Giuffrida, Italian Parliament Approves Bill to Criminalise Surrogacy Abroad, The Guardian (July 26, 2023), https://www.theguardian.com/world/2023/jul/26/italian-parliament-approves-bill-criminalise-people-seeking-surrogacy-abroad [https://perma.cc/XLG3-G9Q8].

[10] Id. 

[11] Dale Seufert-Navarro, Meloni’s Surrogacy Ban Foreshadows a Troubling Future for Italy, Carolina Pol. R. (Aug.17, 2023), https://www.carolinapoliticalreview.org/editorial-content/2023/8/17/melonis-surrogacy-ban-foreshadows-a-troubling-future-for-italy [https://perma.cc/3H4L-R2ZW].

[12] Id. 

[13] Id. 

[14] Id.

[15] Id.

[16] Id. 

[17] Italy to Debate Bill That Criminalises Surrogacy Done Abroad, Reuters (Mar. 22, 2023), https://www.reuters.com/world/europe/italy-debate-bill-that-criminalises-surrogacy-done-abroad-2023-03-22/.

[18] Id. 

[19] Surrogacy Arrangements Act 1985, c. 49 (UK), https://www.legislation.gov.uk/ukpga/1985/49.

[20] Annabelle Sranklen, How a Change in the UK Surrogacy Laws Might Affect UHNWs, Tatler (Apr. 23, 2023), https://www.tatler.com/article/surrogacy-law-change-uk [https://perma.cc/2HZJ-ZQVL].

[21] Ranveig Svenning Berg, Surrogacy Law Reforms – “Timid Tinkering” or “Nothing Short of Revolutionary?” Nuffield Council on Bioethics (June 22, 2023), https://www.nuffieldbioethics.org/blog/surrogacy-law-reforms-timid-tinkering-or-nothing-short-of-revolutionary [https://perma.cc/L98F-VSUD]. 

[22] Id.

[23] Amelia Bell, How Will the New Law Changes Around Surrogacy Impact Parents in the UK?, Women’s Health  (Mar. 30, 2023), https://www.womenshealthmag.com/uk/health/a43452366/new-reform-surrogacy-uk/ [https://perma.cc/R3E5-PAS9].

[23] Id. 

[24] Id.

[25] Id. 

[26] Id. 

[27] Id. 

[28] Id. 

[29] Sranklen, supra note 20.

Comments


bottom of page