Surrogacy, Legal Aspects
Surrogacy is usually thought of as an “on demand” maternity. However, from the point of view of common sense, and also from the legal point of view, the expression refers to a broader concept.
On the one hand, there is surrogate gestation proper, and, on the other, pseudo surrogate motherhood, which refers to in vitro fertilization , or the implantation of embryos and many other reproductive methods.
We tend to use the expression “reproductive motherhood” to refer, in general, to these concepts. The point they have in common, from a legal point of view, is the gestation of a child that is genetically “foreign” to the mother.
Next, we will mainly talk about surrogacy which refers to the situation in which a woman or a couple gives another woman the task of carrying on the pregnancy. This situation is known as a “rented uterus”. Let’s see some legal aspects.
Is surrogate or “on demand” pregnancy legal in Italy?
The legal aspects of surrogacy are one of the main reasons why “procreative tourism” exists. In practice, many couples who have difficulty conceiving and who, in some cases, have tried many methods of assisted fertilization, choose to resort to a rented uterus.
These couples who opt for surrogacy are faced with the fact that in their country of residence this practice is illegal, so they have to travel abroad in order to proceed. In Italy, where the legislation on assisted fertilization is not among the most advanced in Europe, “gestation on request” is not permitted by law.
Law 40 of February 19, 2004 containing “Regulations on medically assisted procreation” reports this prohibition. According to this article, any agreement that provides for a woman to be pregnant “on request”, with or without compensation, and which establishes that the latter renounces her right of maternal affiliation in favor of the contracting party, is void.
The norm means that the newborn born from this gestation is legally the child of the woman who carried it in her womb. This is true in any case, even if there is a kinship relationship between the parties. In the event that the gametes to be implanted in the mother have been specifically provided by the couple concerned, the legal situation remains unchanged.
In the latter case, the only difference is that the man will be legally recognized as the biological father of the child. The expectant mother may even request that she assume her duties as such. But the woman of the couple will have no rights or obligations.
Procreative tourism and surrogacy
Faced with this legal situation, couples who have decided to opt for this method tend to resort to the so-called “procreative tourism”. To do this, they must choose countries where this technique is legal and go there to make the agreement concrete.
Among these countries we find some areas of the United States, such as California, Chicago, Boston and New York, and countries such as Canada, India, Ukraine, Russia and Kazakhstan. California is one of the places where there is more flexibility, making it a favorite destination for procreative tourism. The only problem is the cost, which is much higher than in other countries.
In Europe there are two countries where surrogacy is legal, albeit with some limitations: these are England and Greece. Before choosing the country, it is important to bear in mind that the process is not as simple everywhere.
Legal situation of children born to a surrogate mother
A significant number of Italian couples have resorted to this “on demand” maternity leave technique abroad in recent years. However, once back in Italy things have not always been easy.
Until 2010, the Registry of the Civil Status did not allow the registration of babies born with this surrogacy technique. The child was left without guardianship and could not be registered, so he had no access to social security or free public education.
However, in October 2010 a law was approved that allows the enrollment of children of Italian couples or single fathers, born abroad with the method of surrogacy.
The main requirement for registration is that a competent court in the child’s country of origin confirms, by means of a judgment, that the child is legally the child of the couple.
