by Rachele Zamperini*
On the 19th of June, the Italian Parliament will be called to vote on a bill aimed at declaring surrogacy a “universal crime”. The proposal, which seems inconsistent with some of the basic principles of criminal law, is a vivid representation of how the debate about such a delicate topic revolves around ideology rather than human rights concerns.
The proposal: content and consistency issues with the legal system
Currently, in Italy, surrogacy is regulated under Art 12 of the ART law (n. 40/2004) which imposes a total ban on the practice. Paragraph 6 states that “[Whoever, in whatever form, carries out, organizes or publicizes the commercialization of gametes or embryos or surrogacy of motherhood shall be punished by imprisonment for three months to two years and a fine of 600,000 to one million euro]”. The abovementioned provision applies to criminal conduct that occurred inside the territory of the Italian State. Therefore, so far, the issues concerning surrogacy and, more specifically, the recognition of parentage between children and the intended parents have been treated through the lenses of PIL rules. By contrast, the proposed bill aims at extending the applicability of the sanctions also to Italian citizens who have access to surrogacy abroad and thus, from a criminal law perspective, who had committed the offense abroad.
The proposal raises numerous doubts not only as to whether it would be the most suitable instrument to discourage access to surrogacy but also as to whether it could be implemented. First, the concept of “universal crime” that has been used to describe the object of the proposal doesn’t correspond to any existing concept of criminal law. While Art 6 of the Italian Penal Code expresses the principle of territoriality of criminal law, Art 7 provides a small list of exceptions to this very same principle. The list is the expression of the so-called principle of universality, i.e., the idea that there are crimes so serious that they justify the intervention of the Italian criminal system regardless of where the crime was committed or who committed it. Crimes against humanity – as identified in international conventions – and acts on which criminal nature there is broad consensus (e.g. trafficking in human beings or child prostitution) fall within the scope of this provision. It seems unlikely that surrogacy, a practice that in many States is legal – and sometimes even regulated – can be inserted into one of these categories. It is precisely on this difference in States’ treatment of surrogacy that the second perplexity about the feasibility of the proposal is based. It seems difficult to reconcile the proposed ban with the principle of double criminality. According to this principle, it’s not possible to punish someone in Italy for an act committed abroad if the punished conduct is not considered a crime in that same country. That said, the proposal conceals another major issue: because the extension of the ban’s applicability refers to all the conducts taken into consideration by paragraph 6, the bill will also end up affecting the commercialization of gametes and embryos. Thus, the new formulation would also criminalize Italian citizens who travel abroad to have access to ART services based on heterologous fertilization. Moreover, even the practice of importing gametes from foreign biobanks – which is the main source of supply of this material for the Italian NHS – could fall under the new extended ban.
The political debate and its flaws
Since the last decision of the Court of Cassation in December 2022 surrogacy has been at the centre of the political debate. The discussion appears to be extremely polarised. On the one hand, those in favor of the bill connote surrogacy as a “baby-selling practice” that promotes the exploitation and commercialization of women’s bodies. The advocates of criminalization, through this instrument, assert the non-recognition of an unlimited right to parenthood that affects both heterosexual couples and even more so homosexual couples. By contrast, those who support the opposite position assert the self-determination of those involved, i.e. both women acting as surrogates and intended parent couples. Moreover, those in favor of surrogacy associate it mainly with same-sex couples and, for this reason, access to this practice is claimed as a right of the LGBTQ+ community.
Such an extremist discussion ends up neglecting many relevant and complex aspects of surrogacy and fails to frame it inside the broader picture of the international market of reproductive services. If surrogacy is only one service in the reproductive market, who has the upper hand in the transaction? How does it exploit the people involved? What is the role of the intermediaries? Can a contract relationship that asks one party to limit her self-determination by ceding some of her rights on her own body to the other party be enforceable? What are the implications for the child’s right to identity? These are only some of the questions that should be asked to properly tackle such a broad and sensitive topic and that are completely overlooked by the “universal crime” bill rationale.
Overall, the proposal seems to be the natural and hasty outcome of a superficial and ideological political discussion, which ignores all the inputs coming in from the High Courts. In particular, it is noticeable how, in contrast with the latest Court of Cassation Judgement, the proposal nor the reasoning behind it does take intoconsideration how would the criminalization affect children and their rights. In the latest Court Cassation Judgment, the Court pointed out how the prohibition of surrogacy is rooted in human rights concerns as the practice violates women’s dignity and poses a threat to children’s right to identity. However, while reiterating this concept, the judges never asked for the intervention of the criminal policymaker. Instead, they have stressed the imperative need to guarantee the child born out of surrogacy the same rights as other children, in line with their right to private and family life (art 8 ECHR) and the ECtHR relevant case law on the matter. Despite that, it appears that the proposal focuses on the adults’ conduct while completely ignoring the position of children as subjects of rights.
*PhD Candidate, University of Pisa
