Italy’s Extraterritorial Surrogacy Prohibition: Cross-Border Parentage Recognition and Legal Fragmentation

One of the most significant legal consequences in Italy involves the recognition of parentage orders. Italian courts apply the principle of ordre public, or public policy to refuse recognition of foreign birth certificates listing two fathers. This practice is grounded in the doctrine mater semper certa est, under Italian family law recognizes the gestational mother as the legal mother. The transcription of a foreign birth certificate reflecting a surrogacy arrangement may therefore be partially void in Italy.

This doctrine has been upheld by the Court of Cassation, Italy’s highest court of appeals. Decisions from 2014 and 2016 affirm that recognizing a foreign birth certificate listing two fathers would violate Italian public order because it circumvents the domestic prohibition on surrogacy. A 2019 decision permits adoption by the non-biological parent in limited cases, offering a years-long judicial workaround. However, the decision does not alter the general rule barring the registry of foreign birth certificates reflecting surrogacy.

Families returning to Italy often encounter what is termed a “limping legal status.” The child may be recognized as having two legal parents in the country of birth, but only one in Italy. This discrepancy undermines the child’s rights under Article 7 of the UN Convention on the Rights of the Child, which guarantees a child’s right to identity, name, and nationality. Children may face administrative hurdles regarding healthcare coverage, school registration, and inheritance rights. In cases where the legally recognized parent passes away, the child may be left without a legally recognized parent in Italy and subject to guardianship proceedings.

Italy’s approach raises questions about extraterritorial jurisdiction and the extent to which one sovereign state can criminalize an act committed legally in another state. While states occasionally assert universal jurisdiction for crimes of genocide or terrorism, applying criminal penalty to conduct that is lawful in the country where it occurred raises significant enforcement challenges and implicates principles of territorial sovereignty.

The Hague Conference on Private International Law has studied surrogacy related issues since 2011 and is now drafting a protocol to facilitate mutual recognition of foreign percentage judgment under agreed upon safeguards. These safeguards include documented consent from the surrogate, protections against coercion, access to independent legal and medical advice for all parties, and prohibitions on trafficking in children. Italy’s approach illustrates how extraterritorial criminal prohibitions can create legal uncertainty and leave surrogate-born children stateless or without recognized legal identity upon return.

Article Written by Mia Sill

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Italy outlaws seeking surrogacy abroad in blow to LGBT couples (2024), Reuters, available at https://www.reuters.com/world/europe/italy-makes-it-illegal-seek-surrogacy-abroad-2024-10-16/  (last visited Jan. 13, 2026).

Sophia Shepherd, Regulating International Commercial Surrogacy: A Balance Of Harms And Benefits, 32 U. FLA. J.L. & PUB. POL’Y 293 (2022).

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