The government has drafted a bill that would introduce the crime of surrogacy into the Criminal Code, punishable even when committed abroad by citizens or residents. The text implements an Arengo Petition approved by the Council in 2025, but committee members remain far apart: some defend the framework, while others question whether criminal law is the right tool. Here’s what the proposal contains, what emerged from the debate, and how other European countries handle the issue.
Surrogacy — or gestational surrogacy — is the practice in which a woman carries a pregnancy to term and commits to handing the child over, after birth, to the commissioning couple or individual. It can take place for payment, known as commercial surrogacy, or without profit, with only expenses reimbursed, known as altruistic surrogacy. In San Marino the practice is currently unregulated, and the government is now proposing to ban it by law — a choice that reaches beyond the Republic’s borders.
What the Draft Law Provides
The bill, presented to Standing Council Committee I by Minister of Justice Stefano Canti, introduces a new Article 226-bis into the Criminal Code, punishing anyone who, in any form, “carries out, organizes or advertises the commercialization of gametes or embryos, or surrogacy or gestational surrogacy for others.” The penalties provided are second-degree imprisonment, a fine, and, for healthcare professionals, a ban from practicing their profession.
The most significant element, however, is different: an amendment to Article 6 of the Criminal Code makes the offense prosecutable even when committed abroad by San Marino citizens or residents. This is the so-called “universal crime”: a couple who used surrogacy in a country where the practice is legal could be prosecuted upon returning to the Republic.
The proposal did not originate from a party initiative: it implements Arengo Petition No. 37 of 6 April 2025, submitted by citizens and approved by the Grand and General Council on 22 September 2025, which explicitly called for the introduction of the offense with extraterritorial reach. This is a direction, Canti noted, already expressed by the Council through resolutions in 2017 and 2018. The declared model is the Italian one: Italy has banned the practice since 2004 and, with Law 169 of 2024, made it punishable even when committed abroad by Italian citizens — the first country in Europe to take this step.
The Debate: Last Resort or “Burying One’s Head in the Sand”
In committee, however, the discussion revealed very different sensibilities that cut across party lines.
The most detailed opposition came from Ilaria Baciocchi (PSD), who shifted the issue from moral to legal terrain: “We are not called upon to pass moral judgment on surrogacy; we are called upon to decide whether the right response is to create a new criminal offense.” For the councilwoman, criminal law — being the most powerful tool a state possesses — should remain “the last resort, the final response, not the first.” Her greatest concerns relate precisely to extraterritorial application: the principle of territoriality, she observed, “is not simply an obstacle to overcome, but one of the limits placed on the state’s power to punish,” and exceptions exist only for crimes such as terrorism, human trafficking and genocide — offenses on which international consensus exists, unlike surrogacy.
Giulia Muratori (Libera) took a similar position, though she was careful to clarify that her opposition to criminalization “does not necessarily amount to support for surrogacy”: her group, she said, rejects any commodification of the female body. Her doubts concern the law’s practical enforceability: “How will the offense actually be established?” she asked, noting that surrogacy does not appear on birth records, and that judicial cooperation with countries where the practice is legal remains largely untested. For Muratori, the risk is a law that is “mostly symbolic,” while the principle upheld by the European Court of Human Rights remains central: once a child is born, their best interests must guide public action.
Defending the bill was Marco Mularoni (PDCS), who framed the discussion in institutional terms: the government, he said, is simply implementing a petition approved by the Council — “the correct functioning of the rule of law.” On the substance, Mularoni acknowledged that criminal law should be a last resort, but noted that the principle “cannot be invoked only when convenient.” On territoriality, his position was firm: banning conduct at home while allowing it abroad “would be a way of burying one’s head in the sand.”
A middle-ground position came from Giuseppe Maria Morganti (Libera), who proposed drawing a distinction: the commercialization of surrogacy is “an aberrant practice” that should be punished, but the wording “anyone who, in any form, carries out” ends up treating equally — and with the same second-degree imprisonment — a couple who use altruistic surrogacy in a country where it is permitted. These are, for Morganti, very different situations that the law should treat differently.
In his closing remarks, Minister Canti acknowledged the divergent views and said he was open to “further discussion” before the final text is submitted, while stressing that the government’s task remains to implement the will expressed by citizens and the Council.
How Europe Regulates the Issue
The debate in San Marino mirrors a divide running through the whole continent, where opposing models coexist.
An outright ban with universal jurisdiction is, for now, an almost exclusively Italian choice: the 2024 law punishes Italian citizens even for acts committed where the practice is legal. This is the model the San Marino draft draws on.
The “classic” ban, limited to national territory, is the most common approach: France, Germany and Spain prohibit the practice and penalize those who organize it in various ways, but do not prosecute their own citizens for what they do abroad. This has a well-known consequence: every year, couples from these countries turn to surrogacy abroad, and courts are then left to rule on the recognition of the children, with the Strasbourg Court having required that the child’s bond with the parents be protected regardless.
The regulated altruistic model has been chosen by the United Kingdom, Greece, Portugal and the Netherlands, each with different rules: surrogacy is allowed, but without payment beyond expense reimbursement and subject to controls — in Greece, even requiring prior judicial authorization. It is an attempt to separate solidarity from the market.
Commercial surrogacy, banned throughout the EU, remains legal in some non-EU countries such as Georgia and, historically, Ukraine, long the primary destination for European couples. It is precisely this sector that draws the most widespread criticism, amid the exploitation of vulnerable women and outright commercial supply chains — which is why, in 2024, the European Union included the exploitation of surrogacy, when carried out through coercion or deception, among the forms of human trafficking.
Open Questions
The San Marino draft has not yet been formally submitted and, as Canti announced, will undergo further political discussion. The questions on the table are the ones raised in committee, and they are far from trivial: is criminal law the right tool for an ethical issue on which Europe itself is divided? Can an offense committed where it is not, in fact, an offense truly be investigated and prosecuted? And could a law meant to protect the dignity of women and children risk, in its current form, treating the commercial exploitation of bodies the same as a donation between consenting adults? In the coming months, the Grand and General Council will be called upon to answer these questions. And it will be one of those votes in which every councillor will have to reckon — before their party group — with their own conscience.
