Future Legal Developments

Surrogacy is legal in the USA.  While an American parentage order and birth certificate may be perfectly valid in the United States, Italy can refuse to recognize those documents, deny legal status to one parent, and even investigate or prosecute the intended parents. Understanding why requires a look at international law, Italian domestic law, and recent European Court of Human Rights (ECtHR) decisions.

1. No Treaty Requires Italy to Recognize U.S. Surrogacy Judgments

A core misconception is that countries must honor each other’s birth certificates or court orders. In reality, there is no treaty, neither bilateral nor multilateral, that requires Italy to recognize a U.S. surrogacy judgment or parentage order.  There is also no Hague Convention on surrogacy or assisted reproduction.

As a result:

• A U.S. pre-birth or post-birth parentage order binds U.S. authorities

• It does not bind Italy

• Italy is free to accept or reject it based on its own public policy

This is the legal foundation for the conflict.

2. Italy’s Domestic Law Criminalizes Surrogacy within and outside its Borders

Italy’s Law 40/2004 already criminalized surrogacy within Italy.  In 2024, Italy went further: it extended criminal liability to Italians who engage in surrogacy anywhere in the world, even where it is fully legal.

Penalties include:

• 3 months to 2 years in prison

• Fines from €600,000 to €1 million

This “universal crime” model means Italian citizens can be prosecuted even if:

• The surrogacy took place in a U.S. state where it is fully legal

• A U.S. court issued a binding parentage order

• a valid U.S. birth certificate lists the intended parents

Italy treats the surrogacy arrangement itself as a criminal act, not the child.

3. Why Italy Can Reject a U.S. Birth Certificate or Court Order

Under principles of private international law, countries generally recognize each other’s judgments unless recognition would violate their “public policy” (ordre public).

Italy views surrogacy as:

• exploitative

• contrary to human dignity

• socially harmful

• illegal and punishable

Therefore, Italy can legally refuse to transcribe:

• A U.S. birth certificate listing the intended parents

• A U.S. court order declaring them legal parents

• Any other document flowing from a surrogacy agreement

This remains true even when both intended parents are genetic parents.

In Italian law, motherhood is determined strictly by gestation, not genetics (mater semper certa est). Thus, the birth mother (the surrogate) is always the legal mother in Italy.

4. Italy Must Recognize the Biological Father: Because of ECtHR, Not Because of the U.S.

The landmark ECtHR case C. v. Italy (2023) clarified a crucial point:

• Italy MUST recognize the biological father.
• But NOT the intended mother, 

to protect the child’s right to identity and family life under Article 8 of the European Convention on Human Rights.

The Court held:

• Refusing to recognize the genetic father violates the child’s rights

• Italy must provide a fast, effective way to secure legal parentage

• But Italy may require the intended (non-gestational) mother to adopt

• Italy is NOT required to recognize the intended mother automatically

• Italy may still criminalize the surrogacy arrangement

This means Italian authorities must recognize the father solely because European human-rights law compels them and not because they accept the U.S. surrogacy order.

5. The Paradox: A Father Can Be Recognized Yet Still Criminally Liable

This is the most troubling contradiction for families.

In Italy today:

✔ The biological father must be recognized

✘ The intended mother must adopt

BUT, both intended parents may remain exposed to prosecution

Parentage recognition protects the child, not the parents.  Criminal liability attaches to the adults’ actions, not the child’s status.

Thus, the father could:

• be recognized as the legal parent

• AND still face criminal penalties for participating in surrogacy abroad

This is why many Italian parents are afraid to return home after international surrogacy.

6. What If the Child Is Genetically Related to Both Parents?

Even in this scenario:

• Italy still treats the surrogate as the legal mother

• Only the biological father is recognized automatically (due to ECtHR)

• The intended mother must be provided with a pathway to parenthood, such as adoption.

• Italy can still consider both intended parents criminal offenders

Unfortunately, genetics does not overcome the Italian rule that the woman who gives birth is the mother.

7. Why Italy’s Approach Matters for International Surrogacy

Italy is now one of the most restrictive jurisdictions in the world regarding surrogacy.  It is even more restrictive than when France resisted recognition a decade ago.

When combined with UN reports that call for a global ban on surrogacy as inherently exploitative, Europe is entering a new phase where:

• domestic bans

• cross-border criminalization

• refusal to recognize foreign judgments

are increasingly common.

Meanwhile, the ECtHR is emerging as a counterbalance, protecting the rights of children, but regretfully, not validating surrogacy itself.

Conclusion

Surrogacy in Italy exposes deep contradictions.  While the United States provides full legal parentage recognition, Italy refuses to accept these judgments on public-policy grounds and now criminalizes the practice entirely, even when carried out abroad. The ECtHR’s decision in C. v. Italy forces Italy to recognize the biological father, but stops far short of requiring recognition of the intended mother or approval of surrogacy itself.

The result is a legal paradox for Italian families: their child’s rights to identity and legal parentage must be protected, but the parents themselves may face prosecution simply for having created that child through surrogacy.

Italy can do better than this; Italians are better than this.