Assisted fertilisation and Medically Assisted Procreation abroad
- Assisted fertilisation and Medically Assisted Procreation abroad
- Reasons why one needs a lawyer experienced in medically assisted procreation
- What Italian legislation says regarding medically assisted procreation also called MAP
- The recognition of the parent of intention in family law in Italy
- Homosexual parenthood and international public policy
- Legal advice for assisted fertilisation and medically assisted procreation
Medically assisted procreation (MAP) today represents a concrete possibility for couples who wish to have a child but encounter natural difficulties. For foreigners in Italy or Italians seeking solutions abroad, assisted fertilisation requires particular attention to legal aspects, especially for the purposes of recognition of the filiation ties that are created.
According to Italian legislation, sterile or infertile couples can access medically assisted procreation. An important opening was however introduced by the Corte Costituzionale in 2015, which extended access also to fertile couples carrying transmissible genetic diseases. MAP techniques, in Italy, are permitted only to couples of different sex, married or cohabiting.
It is fundamental to highlight the difference that exists between heterologous fertilisation and surrogate motherhood:
- heterologous MAP can be female, male or double: in female heterologous we will have an egg donation (donation of female gametes, namely oocytes by a donor), in male heterologous we will have a donation of male gametes (namely spermatozoa), or it is possible to have a double heterologous, namely donation of both female and male gametes by donors. In Italy embryo adoption is not possible.
- surrogate motherhood, on the contrary, presupposes gestation by a woman external to the couple, after in vitro fertilisation or natural or artificial insemination (often, unfortunately, in exchange for payment of a sum of money).
Boschetti Studio Legale, with its team of lawyers specialised in international family matters, offers specialised advice in the procedures that involve recognition in Italy of assisted pregnancy and assisted reproduction, guiding clients through the complex Italian and international regulatory framework.
- Filiazione e minori
- Disconoscimento della paternità
- Dichiarazione giudiziale di maternità e paternità
- Reclamo dello stato di figlio
- Amministrazione beni del minore
- Responsabilità genitoriale
- Sottrazione internazionale di minori
- Filiazione per coppie omoaffettive
- Procreazione Medicalmente Assistita all’estero
Reasons why one needs a lawyer experienced in medically assisted procreation
Undertaking a path of medically assisted fertilisation requires not only medical and psychological support, but also solid legal advice, especially for foreigners in Italy who are not aware of our laws. The complexity of Italian legislation on medically assisted procreation, governed by Legge 40/2004, makes the support of a specialised law firm essential, capable of guiding the interested persons through all the legal aspects of the process.
The particularly delicate point from which to start concerns the distinction between procedures permitted and those prohibited by Italian law. It is fundamental to underline that surrogate motherhood has recently been classified as a universal offence in Italy, which means that it is punishable even if practised abroad. This legislative novelty makes the advice of a lawyer experienced in assisted reproduction even more crucial.
The management of the recognition of filiation relationships arising from practices not provided in Italy represents a critical aspect, and at the same time fundamental, if one wants to safeguard the two interests at stake, namely:
- the superior interest of the minor, to be recognised as a child of the couple and part of a formation, the family one, fundamental for the development of one’s personality;
- the interest in bi-parenthood, namely of the parent of “intention” to be recognised as such by the Italian legal system.
Foreigners who must have filiation arising from MAP recognised in Italy must address complex questions such as the recognition of foreign birth certificates and the validity of international health documents. In these cases, preventive legal advice becomes fundamental to avoid future complications.
Boschetti Studio Legale makes available its team of lawyers specialised in family law to guide clients in the choice of the safest and most appropriate path, in particular for assisted medical procreation. Our advice covers every legal aspect concerning the recognition of acts arising from artificial procreation, from the initial assessment of the available options to the management of all necessary administrative and legal procedures, ensuring that the process takes place in full compliance with the regulations in force.
What Italian legislation says regarding medically assisted procreation also called MAP
Italian law (n. 40/2004) specifically governs assisted fertilisation, establishing who can access it and which techniques are permitted on the national territory. It is important for foreigners in Italy and for Italian couples to understand this regulatory framework to avoid legal problems.
As has been seen, in Italy the law allows access to medically assisted procreation exclusively to couples who face problems of sterility or infertility. However, in 2015, a significant turning point came thanks to the Corte Costituzionale, which extended this possibility also to fertile couples who risk transmitting genetic diseases to their children.
It should be highlighted that heterologous fertilisation, which provides for the use of gametes external to the couple, is now legal in Italy thanks to a judgment of the Corte Costituzionale of 2014. This eliminated the previously existing prohibition, allowing recourse to this technique in cases of absolute and irreversible sterility or infertility. It must be said, however, that despite these openings, in Italy the use of MAP techniques is reserved exclusively for heterosexual couples, whether married or cohabiting.
In addition, as already observed, Italian law categorically prohibits, with criminal sanctions, the commercialisation of gametes or embryos: surrogate motherhood is not only prohibited in Italy, but has recently been classified as a universal offence, prosecutable even if practised abroad.
For foreign couples seeking assistance in Italy, or for Italian couples considering options abroad, it is crucial to understand that when birth occurs in another country, the recognition of parenthood in Italy follows precise rules. Birth certificates formed abroad can be recognised in Italy, but, as will be specified later, they must respect the fundamental principles of the Italian legal system and international public policy, so the necessity of having to apply to the judicial authority is always around the corner; for example, in the case of a child born abroad, when the Italian Administration refuses to transcribe the birth certificate with the indication, also, of the non-biological parent.
The recognition of the parent of intention in family law in Italy
Parenthood, always a central topic in law, is enriched today with new meanings and legal implications due to technological and social evolutions. Among the most complex questions is the role and recognition of the so-called “parent of intention”, an issue that involves Italian law in fields such as medically assisted procreation (MAP), filiation and recognition of family ties.
Parent is by definition the person who contributes directly to the conception of the child, both through genetic material (for example, oocytes or spermatozoa) and by carrying the pregnancy. This biological link is often understood as the most immediate and recognisable in the framework of traditional parental relations.
Given that for Italian law the legal mother of a child is the woman who gives birth to them, a cardinal principle known as “mater semper certa est” (the mother is always certain), it follows that, in the context of assisted fertilisation, the donor of the oocyte is not automatically recognised as the legal mother if she is not also the one who gives birth. This aspect takes on particular relevance in MAP techniques used by female couples abroad or in surrogate motherhood contexts, which in Italy, as has been recalled several times, is prohibited by legge n. 40/2004 and is today considered a universal offence.
Therefore, the donor of the biological material may not coincide with the person who then exercises the parental role in the daily life of the child since they are legally recognised as a parent. This is where the figure of the parent of intention emerges, a particularly relevant figure in cases of heterologous fertilisation (with gamete donation from third parties) or of same-sex couples who resort to MAP techniques abroad.
Italian case law has recognised the importance of the parent of intention on multiple occasions, considering the superior interest of the minor as a priority element. For example, the Corte di Cassazione (judgment 15 giugno 2017, n. 14878) admitted the recognition of homosexual parenthood based on a birth certificate formed abroad, which indicated both mothers — the one giving birth and the parent of intention — as parents. The decision was based on the necessity to ensure to the minor a stable legal and family identity.
In Italy, the relevance of the parent of intention is closely linked to the limits imposed by legge n. 40/2004, which regulates MAP. This legislation, as has been observed, allows access to the techniques only to heterosexual couples, married or cohabiting, and categorically prohibits surrogate motherhood. Consequently, the parent of intention often has to face complex legal procedures to obtain recognition of their role and to be recognised as a parent for all purposes when transcribing the birth certificate of the child in Italy.
We at Boschetti Studio Legale, with our team of lawyers specialised in international family law, can provide all the legal support necessary to safeguard the right to bi-parenthood, in its coincidence with the superior interest of the minor, recalling sources such as the Convenzione Europea dei Diritti dell’Uomo (CEDU) and the Carta dei Diritti Fondamentali dell’Unione Europea, as well as the principle of favor filiationis, which favours the recognition of the status of child to ensure legal and affective stability to the family formation.
Homosexual parenthood and international public policy
In the Italian legal panorama, the concept of international public policy plays a crucial role in balancing the fundamental principles of the national community with foreign legal values. This balance allows the opening of the legal system to foreign rules, provided they do not violate the ethical and social pillars on which the nation is founded.
A central topic is the recognition of homosexual parenthood in the context of medically assisted procreation. It can be said that this topic represents a field in which Italian law has made significant progress, especially regarding the recognition of birth certificates formed abroad. For example, the Suprema Corte di Cassazione, in several rulings (Cass. 15 giugno 2017, n. 14878; Cass. 23 agosto 2021, n. 23319), has established that the birth certificate formed abroad and bearing two mothers does not conflict with international public policy. Such recognition is based on the need to protect the superior interest of the minor, ensuring legal stability and personal identity.
Boschetti Studio Legale offers specialised advice on this complex matter, guiding clients through the most recent jurisprudential evolution, first by referring to the concept of public policy, which represents the entry barrier for rules, acts and judgments of other States.
It should be specified that, when public policy is invoked, reference is made to the specific concept of “international” public policy, comprising the essential principles laid down by the Constitution, by EU law and by international laws that constitute the basis of the ethical, social and legal structure of our national community. This concept allows an opening of the Italian legal system to different legal values, provided that no irreducible oppositions are created with the fundamental principles of the nation.
The Corte di Cassazione, as already written, has established important principles in this matter, in particular with the judgments of 15 giugno 2017 and 23 agosto 2021, recognising the validity of birth certificates formed abroad attesting homosexual parenthood. This opening is based mainly on the protection of the superior interest of the minor, to avoid situations of legal uncertainty that could negatively impact their personal identity.
It is important to reiterate again that while it is possible to recognise filiation for female couples who have resorted to heterologous fertilisation abroad, the impossibility of recognising parenthood arising from surrogate motherhood remains firm, recently qualified as a universal offence in our legal system.
Under this aspect, it is important to observe that national and EU case law had recently identified in adoption in special cases a viable route for the parent of intention who, in the context of surrogate motherhood practised abroad, wished to create a legal bond with the minor in Italy. However, the new qualification of surrogate motherhood as a universal offence marks a turning point that could radically modify this scenario. The choice of the legislator to criminally prosecute the practice even when carried out abroad suggests a closure of the Italian legal system that could also extend to the possibilities of subsequent regularisation of the filiation relationship. In other words, the possibility of resorting to adoption in special cases for the parent of intention may no longer be admitted, since it would translate into a way of circumventing the criminal prohibition now universally applicable.
Legal advice for assisted fertilisation and medically assisted procreation
Boschetti Studio Legale offers complete and specialised advice in the field of legal consequences and recognition of foreign acts arising from medically assisted procreation, with particular attention to the needs of foreign couples in Italy and of Italian couples, regardless of whether the client is a spouse or a de facto cohabitant, who consider treatments abroad. Our advice takes into account the most recent jurisprudential evolutions and the specifics of every case, with the objective of protecting both the interest of the minor and the right to parenthood of homosexual couples, in full compliance with the fundamental principles of the Italian and international legal system.
A fundamental aspect of our professional service in this matter concerns the international recognition of acts of filiation arising from MAP procedures carried out abroad. Our team of lawyers experienced in family law accompanies couples who need a lawyer for managing the complex procedure of transcription of foreign birth certificates in the Italian civil status registers, ensuring that all documents comply with the requirements of the Italian legal system and international public policy.
Our advice also extends to preventive analysis of the possibilities of access to medically assisted procreation according to Italian legislation. We provide an accurate assessment of the legal requirements and of the procedures necessary, helping Italian and foreign couples to understand whether they meet the requirements to access assisted fertilisation in Italy, and guiding them through the required bureaucratic process.
For Italian couples who consider undertaking a path of assisted reproduction abroad, we offer detailed advice from a law firm for families, capable of informing the interested persons in detail about the legal implications of this choice, when one will seek to obtain the transcription of the birth certificate in Italy. We ensure professional and personalised assistance, always in compliance with the regulations in force and the interests of our clients.
Typical scenarios / Case studies
The typical scenarios have been developed by combining the most significant family law cases that the firm routinely handles, with the aim of creating a structured and complex case study to help readers navigate the handling of their own personal cases. The case studies, on the other hand, illustrate individual cases that have actually been handled by the firm, with data and details anonymised to ensure client confidentiality.
Registrazione del contratto di convivenza e regolarizzazione del partner straniero
Coppia residente a Roma: cittadino italiano e compagna straniera priva di documenti di soggiorno. Ricorso cautelare ex art. 700 c.p.c. per tutela della convivenza, seguito da pratica per carta di soggiorno familiare UE.
Adozione di maggiorenne per riconoscere un rapporto familiare di fatto
Cittadino statunitense residente a Roma con legame affettivo stabile con lo zio acquisito. Procedimento per adozione di persona maggiorenne ex artt. 291 e ss. del Codice Civile per formalizzare il rapporto familiare.
Contratto di convivenza per coppia italo-brasiliana: tutela patrimonio e permesso di soggiorno
Imprenditore italiano e compagna brasiliana conviventi da tre anni a Milano. Tre vulnerabilità interconnesse: migratoria, patrimoniale e successoria, risolte con un intervento coordinato su tre fronti paralleli.
Adozione in Colombia: coppia italiana realizza il sogno dopo 3 anni di percorso
Una coppia sposata da otto anni intraprende l’adozione internazionale con la Colombia. Un percorso attraverso due ordinamenti, tre istituzioni italiane e l’autorità centrale colombiana.
Successione con eredi in 4 paesi diversi: coordinamento Italia-USA-UK-Svizzera
Un imprenditore italiano lascia un patrimonio distribuito tra Italia, Stati Uniti e Svizzera, con quattro eredi in altrettanti paesi. Quattro ordinamenti, quattro sistemi fiscali da coordinare in parallelo.
Adozione maggiorenne figlio del partner: riconoscimento legame affettivo ventennale
Un uomo di cinquantotto anni chiede di adottare il figlio trentenne della moglie, cresciuto insieme da vent’anni. Un legame reale che la legge non riconosceva, con implicazioni successorie per i figli biologici.
Impugnazione testamento per lesione di legittima: recuperati 800.000 euro per gli eredi
Due figli ricevono 20.000 euro ciascuno da un testamento che lascia quasi tutto alla seconda moglie del padre. Un’azione di riduzione per lesione della quota di legittima risolta in mediazione.
Pianificazione successoria azienda familiare: passaggio generazionale da 3 milioni
Un imprenditore di sessantadue anni deve trasferire un’azienda da 50 dipendenti al figlio che la gestisce, tutelando la figlia che ha scelto un altro percorso. Patto di famiglia e holding per garantire continuità.
Adozione internazionale da parte di single: quando la legge apre una strada che pochi conoscono
Una donna single di quarantacinque anni intraprende l’adozione internazionale. Un percorso giuridicamente possibile ma poco conosciuto, che richiede una strategia legale specifica fin dal decreto di idoneità.
Eredità digitale: gestione criptovalute e asset digitali del defunto
Un professionista muore lasciando criptovalute per oltre 600.000 euro su wallet e exchange, senza istruzioni di accesso. Un patrimonio digitale che rischiava di andare perduto per sempre.
Rettifica del nome per persona transgender: documenti coerenti con la propria identità
Una professionista trentaduenne, in trattamento ormonale da otto anni, con documenti ancora al nome maschile di nascita. La discrepanza anagrafica generava outing forzati quotidiani in ambito lavorativo, bancario e amministrativo.
Attribuzione di sesso e aggiornamento di oltre 20 documenti: dalla sentenza alla nuova identità anagrafica
Un dirigente di 45 anni con sentenza di rettificazione già ottenuta si trova davanti al vero ostacolo: coordinare carta d’identità, patente, laurea, contratti di lavoro, mutuo e polizze assicurative presso enti con procedure non uniformate.
How we can accompany Italians and foreigners 360 degrees along the path of medically assisted procreation in Italy
Boschetti Studio Legale offers its clients, both Italian and foreign, a complete approach to medically assisted procreation, aware that this path requires much more than legal advice alone.
Our experience has taught us how important psychological support is during the path of assisted fertilisation. For this reason, in matters of medically assisted procreation, we collaborate with a selected network of trusted psychologists, highly qualified professionals who accompany couples in every phase of the process. Our psychologists offer individual and couple consultations, providing the emotional support necessary before and during the path of assisted pregnancy.
For foreign couples, we have multilingual professionals who can ensure support in their mother tongue. We understand the challenges that foreign couples face in navigating the Italian healthcare system. For this reason, we also include in our contract with clients linguistic and cultural mediation services, making available specialised interpreters in the medical-legal field who can facilitate communication with healthcare facilities and assist in the understanding and translation of the necessary documentation.
Our Studio also coordinates relations with healthcare facilities and psychological support specialised in assisted reproduction. We act as intermediaries to ensure that the following services are provided to clients through our network of specialised psychologists:
- Orientation and information on the MAP path (what homologous and heterologous MAP consists of, which facilities can be approached, what are the main steps to face)
- Individual/couple psychological support on the MAP path
- Individual/couple psychological support in the transition from homologous to heterologous MAP
- Individual/couple psychological support on the heterologous MAP path
- Psychological support in case of failure of a MAP attempt
This allows our network of medical and psychological professionals to focus on the personal path of the client, while we deal with the legal aspects, including the procedures relating to residence and residence permit for foreign clients. We also handle any reimbursement procedures, when applicable.
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Who has the right to assisted fertilisation?
In Italy, couples of different sex, married or cohabiting, in whom sterility or infertility has been diagnosed, have the right to assisted fertilisation. Fertile couples carrying transmissible genetic diseases can also access, as established by the Corte Costituzionale in 2015.
What is the maximum age for a woman who wishes to resort to MAP?
Italian law establishes that couples of potentially fertile age can access medically assisted procreation. For women, the limit is set at 43 years for treatments under the National Health Service, but it can vary for private treatments.
What are the prerequisites to resort to medically assisted procreation?
The principal prerequisites are: being a couple of different sex, married or cohabiting, of fertile age, with documented infertility/sterility or with risk of transmission of genetic diseases. The informed consent of both partners is necessary.
Who can access medically assisted procreation?
Medically assisted procreation in Italy is accessible to adult couples of different sex, married or cohabiting, of potentially fertile age, with certified condition of sterility/infertility or risk of genetic diseases transmissible to the unborn child.
