The march 2021 italian constitutional court ruling on surrogacy a prelude to common european legislation for the sake of reproductive health

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The March 2021 Italian constitutional court ruling

on surrogacy: a prelude to common European

legislation for the sake of reproductive health?

Simona Zaami, Alessandro Del Rio, Francesca Negro, Maria Cristina Varone, Susanna Marinelli & Gianluca Montanari Vergallo

To cite this article: Simona Zaami, Alessandro Del Rio, Francesca Negro, Maria Cristina

Varone, Susanna Marinelli & Gianluca Montanari Vergallo (2022) The March 2021 Italian constitutional court ruling on surrogacy: a prelude to common European legislation for the sake of reproductive health?, The European Journal of Contraception & Reproductive Health Care, 27:1, 61-66, DOI: 10.1080/13625187.2021.1987411

To link to this article: https://doi.org/10.1080/13625187.2021.1987411

Published online: 13 Oct 2021

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The March 2021 Italian constitutional court ruling on surrogacy: a prelude to common European legislation for the sake of reproductive health?

Simona Zaamia, Alessandro Del Rioa, Francesca Negroa, Maria Cristina Varonea, Susanna Marinelliband

Gianluca Montanari Vergalloa

a

Department of Anatomical, Histological, Forensic and Orthopedic Sciences, Sapienza University of Rome, Rome, Italy;bSchool of Law, University Politecnica delle Marche, Ancona, Italy

ABSTRACT

Purpose: Surrogacy is an arrangement by which a surrogate mother bears a child for another

cou-ple or person, and is often thought of as a form of ‘treatment’ for couples (or even individuals)

with fertility or sterility issues Still, surrogacy entails ethical issues related to gender, fundamental

human rights, exploitation and inequality

Materials and methods: Starting from the Italian state of affairs, the authors have set out to

briefly expound upon such complexities, taking into account relevant jurisprudence on the subject,

with a particular focus on inter-country surrogacy and second-parent adoption, which can

them-selves engender significant legal dilemmas When residents of countries where surrogacy is

banned travel abroad and hire a surrogate, that may lead to considerable legal hurdles as well

Results: In Italy and elsewhere, the courts have all too often had to fill the vacuum left by the

lack of targeted legislation The Italian Constitutional Court has recently urged lawmakers to enact

new legislation to uphold the minor’s best interests In fact, while some countries recognise the

surrogate as the legal parent, others ascribe parenthood to the commissioning parents That

dis-crepancy can lead to a ‘clash of laws’, resulting in children ending up stateless and unable to

maintain an already established family relationship

Conclusions: Just like fundamental protection of human rights and public health, the regulation

of revolutionary technologies that change the very notion of reproduction, parenthood, and

human identity needs to be governed by uniform standards, shared at least by nations which

espouse common core values

ARTICLE HISTORY Received 12 July 2021 Revised 14 September 2021 Accepted 23 September 2021 KEYWORDS

Inter-country surrogacy; public health; ECtR; Italian constitutional court; legal vacuum

Introduction

Surrogacy, particularly in its commercial version, i.e., when

a surrogate mother is formally hired and paid for agreeing

to be implanted an embryo, usually produced via IVF

pro-cedures, and to bring the pregnancy to term, is a morally,

ethically and legally contentious technique that is banned

in most of Europe Spain, France and Germany are among

those to have banned surrogacy, whether altruistic (i.e.,

with no monetary compensation for the surrogate)

or commercial

In Ireland, the Netherlands, Belgium and the Czech

Republic, surrogacy contracts and arrangements are null

and void, i.e., unenforceable: since there is no legislation

recognising surrogacy, parentage rights cannot be

trans-ferred to the commissioning parents

In the UK, altruistic surrogacy is only legal for UK

nation-als; in Portugal, altruistic surrogacy is legal, but only for

heterosexual couples with medical needs Ukraine and

Russia have the most lax laws on surrogacy in Europe,

allowing aspiring parents, including foreign nationals, to

hire and pay a surrogate for their services [1

In Italy, Law 40/2004 has effectively banned surrogacy

practices, and that ban means that anyone who partakes

in, organises or advertises surrogacy arrangements is also

punishable under criminal law statutes (namely, Article 12

paragraph 6 of the above-mentioned piece of legislation) [2,3] Nonetheless, surrogacy is legal in various world coun-tries, where foreigners often travel to enter into a legal and enforceable surrogacy arrangement [4 Consequently, courts in Italy and elsewhere have had to deal with claims

by intended parents who seek the legal recognition of for-eign-issued birth certificates for children born through sur-rogacy abroad [5] Due to the fact that no international treaty on the issue defines a universally acknowledged set

of legal standards in that respect, the legal beacon to pro-vide guidance when weighing the recognition of foreign orders and birth certificates of children born through surro-gacy is the Italian Private International law [6] and the cri-teria therein laid out One of the most consequential requirements to allow for recognition of a foreign order is adherence to ‘public order’, under the provisions within article 64 68 of Law 218/1995 and subsequent relevant legislation [7,8

It is therefore by virtue of public order preservation that intended parents, declared as such on the foreign birth cer-tificates or court orders, have seen their applications for the recognition and registration of their status as parents turned down by Italian Birth Register Offices That legal trend has established a profile of jurisprudence on the issue: public order would be jeopardised by the very nature

CONTACT Simona Zaami simona.zaami@uniroma1.it Department of Anatomical, Histological, Forensic and Orthopedic Sciences, Sapienza University

of Rome, Rome, Italy

ß 2021 The European Society of Contraception and Reproductive Health

2022, VOL 27, NO 1, 61 –66

https://doi.org/10.1080/13625187.2021.1987411

of those foreign birth certificates and their legal

recogni-tion, in that they have been originated by a practice

expli-citly banned and criminally punishable under Italian

statutes; same-sex parenting, which also may conflict with

the Italian notion of public order, is also a rather moot

point, as is the denial of the right of donor-conceived

chil-dren to know their biological parents [9,10], due to the

considerable degree of legal ambiguity and lack of

tar-geted provisions [11–13]

Italy’s constitutional court: judicial rulings as

substitutes for targeted legislation are not fully

effective in upholding the children’s best interests

Legislative ambiguity and ill-defined standards were

reflected in several rulings issued by first instance Italian

courts, to which intended parents applied in order to be

legally acknowledged as such in their country of origin

Albeit inconsistent, such judgments constitute the only

frame of reference in terms of defining the legal status of

children born abroad through surrogacy, as well as the

alleged rights of intended parents seeking recognition [14]

In light of the above mentioned case law, the rights and

family status of children born through surrogacy abroad

can rely on a certain degree of protection There is no

denying however that court decisions cannot fully meet

the need for a clearly defined set of norms Italian judicial

precedents, as mentioned earlier, are not binding, hence

birth register officials and courts may disregard the

ration-ale on which they are based Should that happen, such

rul-ings could be appealed before higher courts, but that is a

costly and time-consuming exercise

Second parent adoption by biologically unrelated

intended parents can be achieved through ‘adoption in

peculiar cases’ provisions [15], but that too leaves a

signifi-cant degree of uncertainty, owing to the required

assess-ment of the child’s best interests by a judicial body

On January 28th 2021, Italy’s Constitutional Court stated

that the rights of minors born from medically assisted

heterologous procreation abroad must be upheld, and it is

up to the legislator to find the most suitable ways to fill

this regulatory gap, also in light of international sources

[16] The Court made that point after examining in the

council chamber the question of the recognition of the

sta-tus of children born from assisted fertilisation The case

saw a female same-sex couple from Padua, in the northern

region of Veneto, who had two daughters through IVF in

in Barcelona, Spain The two ladies had then separated,

and the biological mother refused to allow the other

mother to see the children; the estranged mother therefore

turned to a lawyer From the juvenile court to the Padua

Court of appeals, no legal basis has been found to bring

closure to the case The Padua court judges therefore

decided to raise a constitutionality challenge, finding a lack

of protection arising from the ‘conflictual situation’ of the

estranged couple, which made, among other things, the

use of ‘adoption in extraordinary circumstances’ unfeasible

[17] Given the absence of clear norms applicable to the

specific case, the Court decided not to intervene, and

instead issued a warning to the legislature, urging

law-makers to devise and enact the most adequate forms of

protection In a ruling dated 9th March 2021, the Court

further elaborated on that rationale, arguing that although surrogacy conflicts with ‘public order’ provisions, poses a threat and an insult against the dignity of women (particu-larly commercial surrogacy) and must be discouraged, the

‘adoption in extraordinary circumstances’ statute cannot adequately serve the purpose of upholding the rights and best interests of children born abroad through surrogacy The Italian magistrates went on to contend that birth certif-icates issued abroad should not be recognised insofar as they indicate the non-biological parent as intended parent; nonetheless, children must be enabled to rely on a ‘swift and effective’ adoption process, provided that all legal requirements are met [18]

The ECtHR has provided guidance

The reason why it has been taking so long to outline a legislative answer to the plight of children born abroad through surrogacy lies in the moral, ethical and political polarisation such issues entail

Recognition of parental status should be assessed irre-spective of whether biological ties exist between the child and the intended parents, prioritising the well-being of children and their right to private and family life That is the rationale undergirding a very relevant European Court

of Human Rights (ECtHR) decisions such as Paradiso and Campanelli v Italy [19–21], Menneson v France [22] and Labassee v France [23] Those underlying fundamental principles have been further stressed by the ECtHR in its advisory opinion, rendered by the Grand Chamber of the Strasbourg Court, based on Protocol No 16 annexed to the European Convention on Human Rights and approved by the Plenary Court on 18 September 2017 [24] In this opin-ion, the European judges have argued that a general and absolute prohibition of recognition of the family relation-ship with the intentional parent damages the inalienable right of the child to family life, understood as social entity, which is also protected by the Italian Constitution According to the judges, the failure to acknowledge the parent-child relationship with either one of the two parents, legally recognised by the law of the country of birth and citizenship, brings about the alteration of the family relationship itself This is bound to negatively affect the minor who loses the right to the continuity of the sta-tus filiationis, i.e., the stasta-tus as legally recognised offspring

Can public health be endangered by the complexities inherent to surrogacy and same-sex parenting?

Ultimately, the ECtHR reasoning goes, failing to recognise the family status of children born through surrogacy abroad undermines their right to personal identity within society That arguably constitutes a public health issues, despite the relatively small number of children involved Still, the broader discussion which revolves around surro-gacy goes well beyond legal principles and provisions: it is instead firmly grounded in individual conceptions of ethics, morality, deeply-held values and religious beliefs In coun-tries such as Italy, Germany and France, surrogacy is often viewed as a blot on women’s dignity, since many believe surrogates are used as a means to someone else’ s end It

is therefore completely banned, although fertility travels

are not, which creates inequality and an element of

dis-crimination against those who cannot afford to travel to

countries such as the United States (mostly California),

India, Thailand, Cambodia and Nepal where surrogacy [25]

In addition to the perceived danger for women’s dignity,

the advances and increasingly widespread use of

techni-ques aimed at non-coital reproduction, including surrogacy,

raise multiple ethical issues, such as the impact on women

and children of dynamics which some feel are tantamount

to the commodification of life Critics consider this a

poten-tially harmful commercialisation of the social realm Still,

that view has been countered by research concluding that

the alleged ‘commodification’ of the parties involved will

not necessarily result in their mistreatment or exploitation

[26,27] On the contrary, significant research studies

focused on surrogates and the underlying dynamics linked

to surrogacy have highlighted that most surrogates are

driven by the altruistic element, i.e., helping couples with

fertility issues achieve parenthood [1,28–30] By the same

token, it has been reported that even though most

surro-gates do not think of themselves as mothers, they are

often keen to maintain contact with intended parents and

children, and that is believed to be a key element

associ-ated with higher satisfaction as well as emotional

well-being and stability [31–33] There is no denying that the

issue is still extremely contentious, and middle ground in

terms of shared solutions will not be easy to find This is

particularly true with regard to surrogacy by same-sex

cou-ples seeking to become parents; in Italy, for instance,

although the parliament finally passed a law regulating civil

unions, also intended for same-sex couples, second-parent

adoption was taken out of the bill following heated debate,

and is still illegal to this day That goes to show just how

controversial and thorny an issue same-sex parenting still

is, regrettably, in several countries [34] Consequently,

gain-ing a favourable parliamentary majority to pass new

legisla-tion is considerably harder, particularly so in countries such

as Italy, where Catholicism has for centuries played a major

role in shaping the ruling classes as well as their

constitu-encies Such permanent gridlock can pose a grave threat

to children born through surrogacy abroad A clash of

con-flicting national laws in different countries might mean

that children could end up stateless, with neither country

recognising them as citizens In that regard, it is worth

mentioning the 2008 landmark case of baby Manji, a child

born through surrogacy in India, and who was left in a sort

of legal limbo after the Japanese commissioning parents

divorced prior to his birth [35] India requires that a child

be legally adopted before leaving the country, but bars

sin-gle men from adopting Manji’s commissioning father, who

did want the child, was denied travel documents for the

baby, since the Japanese government would not allow him

to bring the child back home As a result, it was unclear

who the legal parents were, and what the child’s

national-ity was going to be The situation was widely covered in

Indian and global media, and grew into a legal and

diplo-matic crisis

Manji was eventually allowed to leave for Japan with

her grandmother, thanks to the intervention of the

Supreme Court of India The biggest impact of the Baby

Manji Yamada decision has been that it caused Indian

legislators to enact a law regulating surrogacy, but the debate within India about surrogacy continued until the Indian Government introduced a bill designed to amend the previous surrogacy law in October 2015, passed on 21 November 2016 [36], for the purpose of banning foreign citizens from access to surrogacy services in the country and stemming the massive flow of ‘fertility tourists’ Overall, the growing demand for surrogacy services on a global scale has engendered an interesting paradox: the global surrogacy market has developed because of the inconsistency of laws around the world, but it is precisely because of these discrepancies that national authorities are often unable to regulate the practice in a balanced and effective fashion, thus jeopardising the rights and welfare

of children and parents alike As surrogacy gains in popu-larity, these legal and ethical dilemmas will only become more pressing Pandora’s Box has been opened, while national lawmakers have so far not lived up to the task of providing much needed consistency and reliable normative standards [37] Unregulated surrogacy may cause harm that goes far beyond the children and their right to be legally recognised in the intended parents’ countries of origin Article 3 paragraph 1 of the United Nation Convention on the Rights of the Child asserts that ‘In all actions concern-ing children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration’ That fundamental principle highlights the pressing need for legal, regulatory and policy harmonisation, through provisions devised to uphold public health and human rights through enforce-able sets of guidelines making commercial surrogacy poli-cies even or at least compatible When enacting polipoli-cies, the distinctive traits, values and cultural backgrounds of each country need to be acknowledged, for the ultimate goal of protecting all intervenient parties in a surrogacy agreement Hence, all such policies need to abide by public health principles Many decisions are pending, and cogent answers still have to be provided to questions such as whether there should be requirements for the age of surro-gate women, how many times an individual can act as a surrogate woman, how many eggs should be fertilised, to what extent financial reward is ethically acceptable, and which nation should be bound to grant citizenship to the child in cases of inter-country procedures [38]

Legislative harmonisation: how realistic?

Certainly, seeking legislative harmonisation at the global level on such ethically contentious and polarising issues may indeed seem like an unrealistic, even paradoxical undertaking Nonetheless, the authors believe that should not thwart the effort to arrive at a reasonable degree of consensus and common ground After all, rifts and dis-agreements on bioethics-related issues have never kept lawmakers from enacting laws governing controversial social issues On the contrary, legislative interventions can

at times contribute to consensus-building within society In Italy, an emblematic example of that was the law legalising abortion, which faced steep opposition when drafted and passed in 1978 [39] Still, despite the heated debate, such a law has enabled most Italian citizens to come around and

understand that motherhood cannot be forced upon

women Globalisation itself arguably amplifies the reach,

scope and influence, cultural as well as legal, exerted by

international and European treaties on each individual

nation Surrogacy and fertility tourism go well beyond

Europe’s borders: several countries in different continents

(e.g., the Ukraine, India, the United States among others)

are interrelated in the use of surrogacy by ethnic minorities

who have moved to and vice versa In addition,

reproduct-ive tourism can be between non-European and European

countries and vice versa As for the European scenario, it

may even be unnecessary to wait the often lengthy time

needed to draft and sign a treaty, it might in fact be

enough for the ECtH to be bolder in reaffirming core

prin-ciples Of course, each state is granted a broad margin of

appreciation, and that must be preserved, but not, in our

view, to the point of jeopardising fundamental human

rights That is even more true if the rights and well-being

of children are at stake Hence, children must never be

kept in limbo, with one parent only or none at all, when

there is someone else, the second intended parent, willing

to form a lasting family bond for the sake of the child If

couples travel abroad to avail themselves of a practice,

sur-rogacy, banned in their home country, they may be held

liable by their country, but that must not, by any means,

deprive the child of the right to personal identity and

fam-ily life, as stated by the ECtHR [24] On the other hand,

such a line of argument does not entail that any form of

surrogacy under any condition ought to be countenanced

Upholding the dignity of surrogate mothers worldwide

does call for some definite boundaries that should never

be overstepped Even if commercial surrogacy is legal in

some countries, any form of exploitation that impinges

upon the foundational values enshrined in the ECHR and

the Charter of Fundamental Rights of the European Union

(CFR) [40] must not be allowed to stand Consequently, the

moral imperative by which human dignity is

non-negoti-able should lead each country to lay out rules and

stand-ards to verify that the choice of surrogate mothers is

indeed free, devoid of any element of exploitation, duress

and undue outside pressure In that regard, for instance,

the authors feel it is unacceptable for surrogacy to become

a profession for years, since gestation itself limits personal

freedom The unique complexities inherent in transnational

surrogacy and beginning of life ethics, which are liable to

affect intended parents, surrogates and children, call for a

major concerted effort, at least by all nations of good will

who share a common set of core values and beliefs That

may be the only way to ensure that human rights are not

reduced to a set of good-sounding, but ultimately

empty, precepts

Conclusions

Innovative practices that question the very nature of

pro-creation and human life and dignity need as uniform a

regulation as possible Assisted reproductive technologies,

fertility preservation [41], embryo research, beginning and

end-of-life care are all ethically charged issues on which

broad consensus is difficult to achieve That state of affairs

is what has kept Italy and many other countries from

pass-ing effective, well-balanced legislation aimed at upholdpass-ing

the rights of all parties involved [42,43] Courts have then partially stepped in and ruled applying criteria based on often contradictory interpretations of existing laws Such dynamics can greatly harm both intended parents and chil-dren, since a judgement from first instance courts can take years to be reversed (if at all) by higher courts, fostering uncertainty, severe emotional instability in those involved, and costly legal fees that not everyone can afford to bear The Intergovernmental body Hague Conference on Private International Law [44], through its Council

on General Affairs and Policy (CGAP), has been working on devising internationally agreed-on and consistent standards for national governments to acknowledge the legal status and parenthood of children born abroad through surro-gacy Specifically, the Permanent Bureau of the Hague Conference on Private International Law has been focused

on the private international law issues that arise in connec-tion with the legal parentage of children, within the frame-work of international surrogacy arrangements In March

2020, the CGAP extended such research efforts, according

to the the Experts’ Group latest report; a set of priorities was also identified, among which the development of a wide-ranging private international law instrument for the recognition of foreign court rulings on legal parentage, as well as a separate protocol on the recognition of foreign judicial decisions on legal parentage issued in relation to international surrogacy arrangements The Expert Group aims to devise a set of potential provisions to be inte-grated in both possible regulatory instruments [45]

Historical challenges such as those posed by fast-evolving technologies cannot be governed by piecemeal, inconsistent regulations and norms issued at the national level by individ-ual countries, but rather need to be able to rely on as broad

a consensus as possible, at least among nations who share core beliefs, deeply-held values and worldviews If inter-national treaties have been devised, signed and ratified for the purpose of ensuring that a wide range of fundamental human rights are never violated (e.g., the United Nations Conventions against Torture [46], on the Rights of the Child [47] or of Persons with Disabilities [48] among others), a simi-lar effort needs to be produced in order to make sure that technologies which could potentially affect the health and well-being of billions are introduced and governed in a man-ner consistent with the dignity of human beings at any stage

of development Valuable guidance can be provided by the precepts enshrined in the European Convention on Human Rights and Biomedicine [49], which stresses the awareness that ‘the misuse of biology and medicine may lead to acts endangering human dignity’ If that is achieved in due time, humanity will then be able to rely on scientific progress that truly serves the individual and the communities, for the broader purpose of fostering equality and good health for all:

a means to an end, rather than an end in itself

Disclosure statement

No potential conflict of interest was reported by the author(s).

References [1] S€oderstr€om-Anttila V, Wennerholm U-B, Loft A, et al Surrogacy: outcomes for surrogate mothers, children and the resulting

families —a systematic review Hum Reprod Update 2016;22(2):

260 –276.

[2] Malvasi A, Signore F, Napoletano S, et al 2014-2017 How

med-ically assisted reproduction changed in Italy A short

compara-tive synthesis with european countries Clin Ter 2017;168:

e248 –e252.

[3] Negro F, Marinelli S Is there anything left of the italian law

governing medically-assisted procreation? Clin Ter 2021;171(1):

e57 –e59.

[4] Imrie S, Golombok S Long-term outcomes of children

con-ceived through egg donation and their parents: a review of the

literature Fertil Steril 2018;110(7):1187 –1193.

[5] Ricci G, Campanozzi L, Marinelli S The human embryo,

subject-ivity and legal capacity Notes in the light of art 1 of the italian

law on “medically assisted procreation Clin Ter 2019;170:

102 –107.

[6] Private international law Riforma del sistema italiano di diritto

internazionale privato 218/1995 1995 [Accessed 6 May 2021].

Available from: https://www.esteri.it/mae/doc/l218_1995.pdf

[7] Decree by the President of the Italian Republic 396/2000, D.P.R.

2000 Regolamento per la revisione e la semplificazione

dell ’ordinamento dello stato civile, a norma dell’articolo 2,

comma 12, della L 15 maggio 1997, n 127 art 18 [Accessed 6

May 2021] Available from: https://www.esteri.it/mae/doc/

dpr396_2000.pdf

[8] Council Regulation (EC) No 2201/2003 of 27 November 2003.

concerning jurisdiction and the recognition and enforcement

of judgments in matrimonial matters and the matters of

paren-tal responsibility, repealing Regulation (EC) No 1347/2000, art.

23 [Accessed 6 May 2021] Available from:

https://eur-lex.eur-opa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32003R2201&

from=EN

[9] Ravitsky V The right to know one ’s genetic origins and

cross-border medically assisted reproduction Isr J Health Policy Res.

2017;6:3s13584-016-0125 –0.

[10] Ravelingien A, Pennings G The right to know your genetic

parents: from Open-Identity gamete donation to routine

pater-nity testing Am J Bioeth 2013;13(5):33 –41.

[11] Hertz R, Nelson MK, Kramer W Donor conceived offspring

con-ceive of the donor: the relevance of age, awareness, and family

form Soc Sci Med 2013;86:52 –65.

[12] de Melo-Mart ın I How best to protect the vital interests of

donor-conceived individuals: prohibiting or mandating

ano-nymity in gamete donations? Reprod Biomed Soc Online 2016;

3:100 –108.

[13] Zaami S Assisted heterologous fertilization and the right of

donorconceived children to know their biological origins Clin

Ter 2018;169(1):e39 –e43.

[14] Negro F, Varone MC, Del Rio A Advances in medically-assisted

procreation technologies: can malpractice claims and

“reproductive damage” be identified? Clin Ter 2020;171:

225 –228.

[15] Law 184/83, art 44, subsection 1, lett D 1983 [Accessed on 8

May 2021] Available from: https://www.edscuola.it/archivio/

norme/leggi/l184_83.htm

[16] Italian Constitutional Court Press Service It is up to the

legisla-ture to find the best-suited forms of safeguards for the sake of

children born abroad through surrogacy 2021 [Accessed on 8

May 2021] Available from: https://images.go.wolterskluwer.

com/Web/WoltersKluwer/%7B7ae82e56-1e00-4d29-a5d0-9b0d9c15eaaf

[17] Padua Court Application to the Italian Constitutional Court.

2019.

[18] Italian Constitutional Court ruling n 33 2021.

[19] Grand Chamber Case of Paradiso and Campanelli v Italy

(Application no 25358/12) Strasbourg, 24 th January 2017.

[Accessed on 8 May 2021] Available at: https://lovdata.no/

static/EMDN/emd-2012-025358-2.pdf

[20] Dute J European court of human rights ECHR 2015/12 case of

paradiso and campanelli v Italy, 27 january 2015, no 25358/12

(second section) Eur J Health Law 2015;22:289 –292.

[21] Iliadou M Surrogacy and the ECtHR: Reflections on paradiso

and campanelli v Italy Med Law Rev 2019;27(1):144 –154.

[22] Menneson v France, application no 65192/11 2014 Available

from: https://hudoc.echr.coe.int/fre#

[23] Labassee v France, application no 65941/11 2014 Available from: https://hudoc.echr.coe.int/eng#

[24] European Court of Human Rights Guidelines on the implemen-tation of the advisory-opinion procedure introduced by Protocol No 16 to the Convention (as approved by the Plenary Court on 18 September 2017) Available from: https://echr.coe int/Documents/Guidelines_P16_ENG.pdf

[25] Piersanti V, Consalvo F, Signore F, et al Surrogacy and

“procreative tourism” what does the future hold from the eth-ical and legal perspectives? Medicina 2021;57(1):47.

[26] Knoche JW Health concerns and ethical considerations regard-ing international surrogacy Int J Gynaecol Obstet 2014;126(2):

183 –186.

[27] Berend Z, Guerzoni CS Reshaping relatedness? The case of US surrogacy Antropologica 2019;6:83 –99.

[28] Imrie S, Jadva V The long-term experiences of surrogates: rela-tionships and contact with surrogacy families in genetic and gestational surrogacy arrangements Reprod Biomed Online 2014;29(4):424 –435.

[29] Jadva V, Imrie S Children of surrogate mothers: psychological well-being, family relationships and experiences of surrogacy Hum Reprod 2014;29(1):90 –96.

[30] Zaami S, Marinelli E, di Luca NM, Montanari Vergallo G Ethical and medico-legal remarks on uterus transplantation: may it solve uterine factor infertility? Eur Rev Med Pharmacol Sci 2017;21:5290 –5296.

[31] Carone N, Baiocco R, Manzi D, et al Surrogacy families headed

by gay men: relationships with surrogates and egg donors, fathers ’ decisions over disclosure and children’s views on their surrogacy origins Hum Reprod 2018;33(2):248 –257.

[32] Berend Z The social context for surrogates ’ motivations and satisfaction Reprod Biomed Online 2014;29(4):399 –401 [33] Jadva V, Gamble N, Prosser H, et al Parents ’ relationship with their surrogate in cross-border and domestic surrogacy arrangements: comparisons by sexual orientation and location Fertil Steril 2019;111(3):562 –570.

[34] Schumm WR A review and critique of research on Same-Sex parenting and adoption Psychol Rep 2016;119(3):641 –760 [35] Points K Commercial surrogacy and fertility tourism in India The case of baby Manji Case Studies in Ethics,The Kenan Institute For Ethics at Duke University 2018 Available from: https://kenan.ethics.duke.edu/wp-content/uploads/2018/01/ BabyManji_Case2015.pdf

[36] Official website of the prime minister of the Indian govern-ment News Updates: cabinet approves the assisted reproduct-ive technology regulation bill 2020 2020 Available from: https://www.pmindia.gov.in/en/news_updates/cabinet-appro-ves-the-assisted-reproductive-technology-regulation-bill-2020 [37] Fenton-Glynn C Surrogacy: Why the world needs rules for

’selling’ babies BBC News 2019 Available from: https://www bbc.com/news/health-47826356

[38] Aznar J, Mart ınez Peris M Gestational surrogacy: current view Linacre Q 2019;86(1):56 –67.

[39] Law n 194 1978 [Accessed 13 September 2021] Available from: https://www.gazzettaufficiale.it/do/gazzetta/foglio_ordi-nario2/2/pdfPaginato?dataPubblicazioneGazzetta=19780522& numeroGazzetta=140&tipoSerie=FO&tipoSupplemento=GU& numeroSupplemento=0&progressivo=0&numPagina=1&edi-zione=0

[40] Charter of fundamental rights of the european union 2000 [Accessed 13 September 2021] Available from: https://eur-lex europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32000X1218 (01)&from=EN

[41] Zaami S, Busardo FP Elective egg freezing: can you really turn back the clock? Eur Rev Med Pharmacol Sci 2015;19:

3537 –3538.

[42] Torres G, Shapiro A, Mackey TK A review of surrogate mother-hood regulation in South american countries: pointing to a need for an international legal framework BMC Pregnancy Childbirth 2019;19(1):46.

[43] Parker WJ The moral imperative of reproductive rights, health, and justice Best Pract Res Clin Obstet Gynaecol 2020;62:3 –10 [44] Hague Conference on Private International Law Conference de

La Haye de droit international priv e Conventions, Protocols

and Principles HCCH 1951 –2021 Available from: https://www.

hcch.net/en/instruments/conventions

[45] The World Organisation for Cross-border Co-operation in Civil

and Commercial Matters HCCH The Parentage/Surrogacy

Project Prel Doc No 2B of February 2021 Available from:

https://www.hcch.net/en/home

[46] Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment Adopted and opened for

signature, ratification and accession by General Assembly

reso-lution 39/46 of 10 December 1984 Entered into force on 26th

June 1987, in accordance with article 27 (1) Available from:

https://www.ohchr.org/Documents/ProfessionalInterest/cat.pdf

[47] Convention on the Rights of the Child Adopted and opened

for signature, ratification and accession by General Assembly

resolution 44/25 of 20 November 1989 Entered into force on 2nd September 1990, in accordance with article 49 Available from: https://www.ohchr.org/Documents/ProfessionalInterest/ crc.pdf

[48] Convention on the Rights of Persons with Disabilities (CRPD) Adopted and opened for signature, ratification and accession

on 30th March 2007 Entered into force on 3rd March 2008 Available from: https://treaties.un.org/doc/Publication/MTDSG/ Volume%20I/Chapter%20IV/IV-15.en.pdf

[49] Convention for the protection of human rights and dignity of the human being with regard to the application of biology and medicine Signed on 4th April 1997 Entered into force on 1st December 1999 Available from: https://www.coe.int/en/web/ conventions/full-list/-/conventions/rms/090000168007cf98