by Rachele Zamperini*
After a lengthy process and with loud proclamations of triumph by the government, with Law 4 novembre 2024, n. 169, the Italian legal system declares surrogacy a universal crime. However, the provision that criminalises Italians who engage in this practice abroad seems to be in blatant contradiction with national and international principles.
Law n. 40/2004 regulates artificial reproduction techniques and, among these, surrogacy. By applying a total ban on the practice, Italy has regulated surrogacy for the past 20 years by adopting a prohibitionist approach common to the majority of EU Countries. However, due to the latest policymaker’s intervention, the Italian legal system is now equipped with a regulation like no other State: the extension of the ban’s applicability to Italian citizens who had access to surrogacy abroad. The renewed Art 12 Paragraph 6 now 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. If the acts referred to in the previous sentence are committed abroad in relation to surrogacy, Italian citizens shall be punished in accordance with Italian law”. Therefore, the abovementioned provision applies to conducts that occurred both inside and outside the territory of the Italian State aiming to sharply break off the flux of reproductive tourism towards surrogacy-friendly States. Yet, Since the early stages of the proposal, the law has been raising numerous doubts on its legitimacy as well as on its efficacy.
Doubts about the Law constitutional legitimacy
A primary concern regarding this law pertains to its relationship with general principles of criminal law. Although the term “universal crime” is currently being discussed in the political arena, it is not codified in Italian criminal law. The idea of considering acts related to surrogacy as universally prosecutable seems to conflict with two key principles of criminal law: territoriality and double criminality. The principle of territoriality asserts that national criminal law applies only to actions occurring within the country’s borders, which fall under the authority of the national legislator (as stated in Article 6 of the Penal Code). Exceptions to this principle are outlined in Article 7 of the Penal Code, which accommodates crimes of such severity that the Italian criminal system justifies intervening, regardless of where the crime occurred or who the perpetrator is. Crimes against humanity as defined in international conventions (e.g. genocide – where current events demonstrate the difficulty of prosecuting the perpetrators -) and acts on which there is a broad consensus as to their criminal nature (e.g. trafficking in human beings or child prostitution) fall within the scope of this provision. In this light, it appears unlikely that surrogacy, a practice that is legal and often regulated in many countries, could be categorized in this way. This disparity in how different countries treat surrogacy makes it difficult to align the proposed ban with the principle of double criminality. According to this principle, an individual in Italy cannot be punished for an act committed abroad if that act is not considered a crime in the country where it occurred.
On the other hand, set aside for the penalties applicable to the offence, the law does not take into consideration how the criminalization would affect children born via surrogacy. It is clear that by focusing only on the behaviour of adults, the law completely ignores the position of children as right-holders. What implications will the new law have on legal parentage of children born via surrogacy abroad? Can the State refuse to recognize the status established in another country? If the biological parent of the child is convicted, can he lose parental responsibility as a collateral sanction? The legislature’s failure to plan and implement systematic interventions leaves these and other questions unresolved. What can be argued, based on the evolution of European and National jurisprudence, is that the new provision cannot be invoked to prevent the establishment of the filial relationship tout court. According to the established interpretation of the principle of the best interests of the child, as provided by the European Court of Human Rights and confirmed by the Italian High Courts, it would be contrary to the fundamental rights of minors if the Italian State refused to transcript the act establishing the filiation relationship between the biological parent and the minor, while simultaneously failing to provide any means to establish the relationship between the child and the intended parent (Riccioli). To sum up, given these considerations, it is likely, if not even desirable, to anticipate possible unconstitutional challenges to this law in the future.
Doubts about the Law efficacy and paradoxical outcomes
The rationale behind the ban on surrogacy is to protect the inalienability of the human body and, thus, the dignity of women, as well as the best interests of children. On the other hand, the rationale behind universal criminalisation is to discourage reproductive migration to legal systems where the practice is permitted. It is arguable that this measure is both inefficient in achieving its purpose and inconsistent with the values it is supposed to uphold. Instead of discouraging the use of surrogacy, extraterritorial criminalisation only discourages its practice in jurisdictions where the law requires that either the technique or the identity of the mother be mentioned on the birth certificate (Calderai). People who have the opportunity and the means to invest in this transaction in the reproductive services market will not abandon their intention but will be able to go, if at all, to jurisdictions where parentage is established by means that conceal the involvement in this practice. Therefore, a similar intervention is more likely to encourage the flow of Italian citizens toward states where the practice is shadier, less controlled and more risky for the women and children involved. In this vicious circle, total criminalisation reveals a contradiction with the very values that the legislator loudly proclaims to protect.
Overall, the universal criminalisation of surrogacy appears to be incompatible with the system of principles enshrined in the Italian Constitution. In order to strengthen the effectiveness of the national ban, other tools would be needed: it would be appropriate to educate people through information and awareness-raising campaigns that explain the delicate balance of fundamental rights and principles that the surrogacy ban is the result of. Furthermore, it is essential to eliminate ideological biases from the debate surrounding the prohibition of surrogacy. However, it is difficult to envision such an approach being taken by the current legislators, who appear more focused on asserting their authority through displays of strength rather than fostering meaningful dialogue.
*Research Fellow, University of Pisa
