Family Law

Italy’s Historically Horrific New Surrogacy Law Is Also A Threat To U.S. Attorneys

Italian citizenship through ancestry could, in theory, cause some problems. 

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Italy FlagOn October 16, 2024, Italy’s Senate passed a first-of-its-kind anti-surrogacy law. The country already banned surrogacy — an arrangement where a woman carries a pregnancy for another person or couple — within its borders. But the new law takes it a step further, criminalizing the actions of Italians who pursue or assist with surrogacy arrangements even in other countries, where it is legally supported, such as the United States or Canada.

The law includes penalties for “anyone who carries out, organizes, or advertised the commercialization of gametes, embryos, or surrogacy,” with consequences of three months to two years in prison, and a minimum fine of 600,000 euros!

The law is incredibly disappointing for hopeful parents in Italy who are unable to carry a pregnancy on their own. A majority of Italians seeking surrogacy assistance are heterosexual couples unable to carry a pregnancy for medical reasons — a not-surprising fact with infertility on the rise globally. However, the new law is especially devastating for LGBTQ+ parents, who already face a ban on both domestic and international adoption in the country, and now lose their last real path to parenthood.

While Italy’s president could still veto the bill, that is expected to be very unlikely, given her and her political party’s conservative platform, which is openly hostile to LGBTQ+ rights.

Attorneys, You May Unknowingly Be Subject To This Law. Italian attorney Alexander Schuster spoke in the United States in September 2024 to a conference of adoption and assisted reproductive technology (ART) law attorneys. He explained the far-reaching consequences of the law, including a legal threat even to some U.S. attorneys. Schuster described how some U.S. attorneys may be subject to the law without even knowing it.

Wait, how would that work? Well, Italy has generous rules as to the conveyance of Italian citizenship. And, in essence, any American who has an Italian ancestor — not an uncommon lineage — may be entitled to Italian citizenship. There are exceptions to the rule, of course, including if the Italian ancestor renounced Italian citizenship when acquiring the U.S. one. But your average U.S. attorney with an Italian great-grandparent, as wild as that may seem, probably qualifies for Italian citizenship. And that citizenship through ancestry, Schuster explained, can subject a U.S. attorney advising on surrogacy matters within U.S. borders to the consequences of the harsh new law.

The same reasoning applies to nonattorneys, as well, including U.S. fertility doctors, embryologists, insurance professionals, agencies, and others, who support surrogacy arrangements in the United States

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Of course, Schuster points out that Italian citizenship by descent does not actually appear anywhere in Italian government registers, so this scenario is purely theoretical, and enforcement is practically impossible. No Italian criminal authority is likely to investigate descent and impose Italian law on American attorneys practicing exclusively in the United States.

Despite its theoretical nature, U.S. attorneys practicing in the area of surrogacy law with Italian ancestry may want to think twice before heading over for their favorite gelato or a Venetian gondola ride. A consequence of note — but with no comparison to the devastation the Italian LGBTQ+ community is facing.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at [email protected].

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