The Italian Senate recently passed a law making surrogacy a “universal crime.” In a country where surrogacy is already illegal, and has been since 2004, this decision takes the restrictions to a whole new level.
While Italian law already bans surrogacy within Italy, the new ban will make it a crime for Italians to use surrogacy abroad – even in countries where the practice is legal.
Use of the term “universal crime” (Rito Universal) to describe the ban has raised further concerns. This language is reminiscent of the wording of the Italian Criminal Code for crimes considered so serious that they violate “universal values”. Therefore this term equates surrogacy with genocide and crimes against humanity.
Countries are unanimous on whether surrogacy should be allowed or banned. Despite various restrictions and security measures, many people allow it. In Greece, non-commercial surrogacy has been legal since 2002, allowing prospective parents to acquire legal paternity at birth. In California, so-called commercial surrogacy – where the surrogate receives compensation – is also allowed.
Other countries, including France and Germany, ban surrogacy. This means that the surrogate is the legal mother at the time of birth of the child. But they still usually allow the prospective parents to establish a legal bond with the child in other ways, for example using a surrogate mother as well as the genetic father, or both parents through adoption. By giving legal recognition, in cases where surrogacy is sought abroad.
In the UK, the surrogate is the legal parent at birth, but courts can transfer paternity to the intended parents through a parental order, a surrogacy-specific mechanism designed to be less burdensome than adoption. Is.
Italian Prime Minister Giorgia Meloni called the new surrogacy ban “common sense” and celebrated it as protecting women and children from “commodification”. Others consider this ban contrary to the safety of women and children.
international decision
The European Court of Human Rights often examines events in its member states (which includes Italy) to determine whether there is broad consensus on an issue. In 2014 it looked at surrogacy in its Meneson v. France decision. And in 2019 it issued an advisory opinion on the matter.
Although it found no consensus on the legality of surrogacy arrangements, it decided that the rights of children born through surrogacy require “the possibility of recognition of the legal parent-child relationship”. Italy’s blanket ban flies in the face of this logic.
In 2019, the British Supreme Court also called for the welfare of the child as the main driver for judges to recognize intended parents as legal parents. To do otherwise in most cases, it concluded, would risk leaving the child “legally parentless (and possibly even stateless)” – as they would be legally tied to a person living abroad. And who were not intended to be their parents.
A UK study found that most surrogate mothers do not see themselves as mothers and would support recognizing the intended birth parents as legal parents.
Meloni’s government, led by Italy’s far-right Brothers, has consistently focused on policies that promote the “traditional” form of the family. Running on a platform centered on the fascist motto of “God, Family, Fatherland”, Meloni’s government has been open about its anti-LGBTQ+ stance.
Banning surrogacy was in the party’s manifesto, along with policies against same-sex marriage and same-sex adoption. During debate in the Senate, a senator from the Brothers of Italy called motherhood “the foundation of our civilization.” Maloney’s policies, ranging from bans on surrogacy to restrictions on abortion, reduce reproductive choice—ideologically motivated by an emphasis on “natural” motherhood.
Although most straight Italian couples go abroad to use surrogacy, many of them will hide the fact that they had a child this way. Same-sex couples are even more restricted because they obviously can’t fly under the radar in the same way. Under Italian law, they have no other option for having a child together: they are banned from accessing IVF or adoption.
While legal scholars and activists question whether the law can withstand legal scrutiny or how it will be implemented in practice, same-sex parents express fear that they are faced with two impossible choices: stay in their country indefinitely; Leave for, or stay in Italy and cope. jail time. Under the new law, he faces up to two years in prison and a fine of up to €1 million (£836,000).
In an age of populist politics, where LGBTQ+ and women’s rights are increasingly weaponized, Italy’s surrogacy ban perhaps comes as no surprise, but it should still concern us.
,Author: Daphne Lima, Assistant Professor in Family Law, Durham University)
,disclosure statement: Daphne Lima does not work for, consult, hold shares in, or receive funding from any company or organization that would benefit from this article, and has no relevant affiliations beyond her academic appointment. not disclosed)
This article is republished from The Conversation under a Creative Commons license. Read the original article.
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