Surrogacy carried out abroad can now have criminal consequences in Italy as well if it involves an Italian citizen. The issue is not just understanding whether the practice is permitted in the country where it takes place: it is necessary to distinguish the law applicable to the event, the conduct actually carried out, the date on which the events occurred, and the issues concerning the child born from the process.
I will explain what has changed since December 3, 2024, why the expression “universal crime” can be misleading, and which aspects must not be confused with the criminal issue. We will also see why the prohibition and the legal position of the minor follow different planes: a criminal allegation does not automatically decide the status of child, just as a birth certificate formed abroad does not single-handedly eliminate every question provided for by Italian law.
The Rule Introduced for Acts Committed Abroad
Starting from December 3, 2024, Article 12, paragraph 6, of Law No. 40 of 2004 expressly provides that the Italian citizen shall be punished according to Italian law even when the surrogate motherhood acts indicated by the rule are committed abroad. The amendment was introduced by Law No. 169 of November 4, 2024, published in the Official Gazette on November 18, 2024, and entered into force on the following December 3. The text of the reform can be consulted in Law No. 169 of 2024.
The provision does not create a new prohibited practice: instead, it extends the possibility of applying Italian criminal law to surrogacy acts committed outside national territory by Italian citizens. The core of the crime remains in Article 12, paragraph 6, of Law No. 40: the rule punishes anyone who, in any form, carries out, organizes, or advertises surrogate motherhood. The penalty provided is imprisonment from three months to two years and a fine from 600,000 euros to one million euros.
Italian citizenship is an express prerequisite of the new extension. The text does not speak generically of persons residing in Italy, foreign citizens present in the country, or every participant in the path undertaken abroad. However, this does not allow one to conclude, without examining the facts, that a certain person is extraneous to the affair: in criminal law, what counts is the actual role played, the connection with the conduct described by the law, and the circumstances in which it was carried out.
Why “Universal Crime” Does Not Describe the Whole Rule
The journalistic label oversimplifies. Law No. 169 of 2024 is often defined as a rule on a “universal crime,” but its text does not grant Italy general jurisdiction over any act of surrogacy committed by anyone and in any State. The legislator has provided, in literal terms, for the punishability according to Italian law of the Italian citizen for surrogacy acts carried out abroad.
Lawfulness in the foreign country does not close the Italian issue. A path regulated or permitted by the law of the place where it occurs may still have relevance in Italy if the conditions of the Italian criminal provision are met. It is therefore not correct to rely solely on the contract, the clinic's authorization, or the foreign birth certificate to assert that there is no risk in our legal system.
Nor is traveling abroad enough on its own to define the crime. The rule does not punish a family category nor does it use the formula “whoever becomes a parent through surrogacy.” Instead, it indicates specific conduct: carrying out, organizing, or advertising surrogacy. Establishing whether a person has carried out one of these conducts requires connecting the concrete facts to the text of the rule, without replacing legal analysis with generic definitions or with the sole outcome of birth.
Conduct and Facts That Can Change the Assessment
Concrete roles come before the formulas used in documents. An agreement may call the parties “intentional parents,” “commissioning parties,” intermediaries, or consultants, but criminal qualification depends on what each person actually did. For example, the organization of the path, relations with facilities or intermediaries, economic agreements, the management of pregnancy, and promotion activities for the practice can assume relevance.
Advertising is a distinct conduct. Alongside execution and organization, the law also couples the advertisement of surrogacy. For this reason, it is not prudent to consider online content, campaigns, announcements, or initiatives aimed at promoting a service as irrelevant. The decisive point is not the use of a technical word, but the effective communicative function of the message and its connection to the prohibited practice.
Documentation serves to reconstruct facts, not to transform them. Birth certificates, foreign measures, contracts, health documents, and communications can have different functions: some concern the child's civil status, others the relationship with operators or agencies, and still others chronology. A document valid in the State of formation does not automatically resolve either criminal liability or the recognition of family relationships in Italy.
The Date of the Act Is Decisive for the New Discipline
Law No. 169 entered into force on December 3, 2024. This date does not coincide with the date of its approval on November 4, 2024, nor with that of its publication in the Official Gazette on November 18, 2024. When a path develops in multiple phases, it is not enough to indicate the year of birth: it is necessary to distinguish acts performed before and after the entry into force of the amendment.
An unfavorable retroactive application should not be presumed. Article 2 of the criminal code expresses the principle whereby no one can be punished for an act that, at the time it was committed, did not constitute a crime. Temporal discipline can become delicate if one discusses conduct initiated before December 3, 2024, continued after that date, or performed abroad in different phases. In these cases, it is not correct to derive an automatic answer solely from the date of delivery or return to Italy.
Chronology must be precise. The distinction between the decision to undertake the path, the stipulation of agreements, organizational activities, pregnancy, birth, and registration of the act can affect the problem to be addressed. This does not mean that every step necessarily constitutes a crime; it means that the dating of individual facts is indispensable for correctly applying a rule that entered into force at a determined moment.
Criminal Prohibition and Child Status Remain Separate Issues
Law No. 169 of 2024 does not regulate the status of child. Its only amendment concerns Article 12 of Law No. 40 and the prosecutability of acts committed abroad by the Italian citizen. It does not introduce a new rule on the transcription of birth certificates, the recognition of filiation, or adoption. Therefore, it is not correct to assert that a possible criminal charge automatically cancels the rights of the minor or determines on its own who should appear as a parent in Italian registries.
The best interests of the child require autonomous protection. The Constitutional Court, in judgment no. 33 of 2021, distinguished the disvalue attributed by the legal system to surrogacy from the necessity to ensure the child protection of the bond with whoever de facto exercises parental responsibility. The Court recalled, as a path provided within the framework examined at the time, adoption in special cases and urged an intervention by the legislator more adequate to the specificities of these situations. The ruling is available in the Constitutional Court judgment no. 33 of 2021.
Surrogacy must not be confused with other medically assisted reproduction hypotheses. Constitutional Court judgment no. 68 of 2025 concerns the recognition of a child born from medically assisted reproduction practiced abroad by a female couple and expressly specifies that that affair is distinct from surrogate motherhood. Citing it as if it had resolved the issues of surrogacy would lead to an erroneous conclusion. The distinction is clarified in judgment no. 68 of 2025.
Which Choices to Consider Without Worsening the Problem
Immediately separating the criminal plane from the family one helps avoid errors. The protection of the minor's position, the formation or transcription of a civil status act, and the assessment of possible criminal liability are not interchangeable questions. They may involve common documents, but they follow different rules, authorities, and consequences. Addressing one does not replace the other.
Spontaneous statements require awareness. Approximate reconstructions, documents produced out of context, or public communications can create misunderstandings about the sequence of events and the roles played. This is not an invitation to conceal or alter documents: on the contrary, it means preserving documents in their integrity and not providing improvised legal explanations on facts that may have relevance in multiple venues.
A useful reconstruction starts from essential data: citizenship of the persons involved, country where the activities took place, dates of relevant steps, content of acts formed abroad, and current situation of the minor. If a concrete problem emerges, we can orderly distinguish the criminal position from the initiatives necessary to protect family continuity, parental responsibility, and the child's legal relationships.
Frequently Asked Questions
Is surrogacy performed abroad always punishable in Italy?
No, it is not enough that the path took place abroad. Since December 3, 2024, the law expressly concerns the Italian citizen and requires the occurrence of the surrogacy facts described by Article 12, paragraph 6, of Law No. 40. The law of the foreign country does not automatically eliminate the Italian problem, but neither does birth abroad alone prove criminal responsibility.
Does the term “universal crime” mean that foreign citizens can also be prosecuted?
No, this conclusion does not derive from the text of the law. The provision added in 2024 indicates the Italian citizen who commits surrogate motherhood acts provided by the rule abroad. Using the expression “universal crime” must not make one forget this explicit subjective limit, nor replace the analysis of concrete conduct.
Does Law No. 169 of 2024 apply to a path started before its entry into force?
The answer depends on the dates of individual conducts. The law entered into force on December 3, 2024, and the principle of criminal non-retroactivity prevents treating prior facts lightly under a subsequent more unfavorable discipline. It is therefore necessary to distinguish prior agreements and activities from any acts performed after that date.
Does a foreign birth certificate automatically resolve the problem in Italy?
No, the foreign act does not always produce all the requested effects. Its content, the nature of the authority that formed it, and the position of the indicated parents affect civil status issues. Furthermore, the criminal discipline introduced by Law No. 169 does not establish on its own how the child's status should be defined in Italy.
Does a possible criminal investigation deprive the child of all family protection?
No, the protection of the minor follows an autonomous plane. The Constitutional Court highlighted the need to protect the child's bond with whoever de facto exercises parental responsibility, albeit within the framework of the prohibition of surrogacy. The tools that can be used depend on the concrete situation and must not be confused with the ascertainment of any responsibilities of the adults.
Essential Regulatory References
The central reference is Article 12 of Law No. 40 of 2004, in the text in force since December 3, 2024, which reports both sanctioned conducts and the extension to acts committed abroad by the Italian citizen. The updated text is available on Normattiva, Article 12 of Law No. 40 of 2004.
If the situation already involves a birth or a foreign act, it is important not to postpone the distinction between criminal profiles and family protection. You can contact me to frame the problem based on dates, documents, and legal relationships effectively in existence.