The legally charged issue of cross-border surrogacy: Current regulatory challenges and future prospects

Abstract

The article aims to shed a light on the unique complexities inherent in surrogacy and the legal-ethical challenges that currently exists even in many advanced democracies, which frequently result in uneven and ill-defined standards and processes. The recent proposal of making surrogacy a “universal crime”, meant to prevent cross-border surrogacy, i.e. travels by citizens from countries where it is illegal to countries where it is legal, has also been weighed, by exploring the current legislative state of affairs, trends and future horizons. Recent case-law has been analyzed and interpreted, with a close focus on Italian Supreme Court ruling n. 38162, issued on 30th December 2022 and European Court of Human Rights (ECtHR) rulings issued over the past decade. Uncertainty and ill-defined norms and court rulings risk harming the rights of children, surrogate mothers and intended parents. So far, court decisions have somehow filled the legal vacuum, considering that cross-border surrogacy is not specifically regulated in many countries and the status of children born abroad is still controversial. The views and judgments of supranational courts on the issue need to be accounted for when drafting new specific legislation. It is of utmost importance to uphold the rights of children born through surrogacy abroad, whose best interests risk being damaged. Legislative harmonization at the international level is essential to prevent the cross-border surrogacy trend. The “universal crime” draft bills appear to be difficult to enforce and too vague to be credible at the moment.