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 rulingon surrogacy: a prelude to common Europeanlegislation 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

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

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.

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

CONTACTSimona Zaamisimona.zaami@uniroma1.itDepartment of Anatomical, Histological, Forensic and Orthopedic Sciences, Sapienza Universityof 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.

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).

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