Dr Dafni Lima

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 restrictions to a whole new level.

While Italian law already prohibited surrogacy within Italy, the new ban will make it a crime for Italians to access surrogacy abroad — even in countries where the practice is legal.

The use of the term “universal crime” (reato universale) to describe the ban has raised further concern. The language evokes the wording of the Italian criminal code for crimes considered so serious that they contravene “universal values”. The wording therefore puts surrogacy on a par with genocide and crimes against humanity.

Countries are not aligned on whether surrogacy should be allowed or prohibited. Several allow it, albeit with different restrictions and safeguards. In Greece, non-commercial surrogacy has been legal since 2002, allowing the intended parents to have legal parenthood at birth. In California, even so-called commercial surrogacy — where the surrogate receives compensation — is allowed.

Other countries, including France and Germany, prohibit surrogacy. This means that the surrogate is the legal mother when the child is born. But they still typically allow the intended parents to establish a legal bond with the child by other means, for example by giving legal recognition to the genetic father alongside the surrogate mother or to both parents via adoption, in cases where surrogacy has been sought abroad.

In the UK, the surrogate is the legal parent at birth but courts can transfer parenthood to the intended parents through a parental order, a surrogacy-specific mechanism designed to be less burdensome than adoption.

Italian prime minister Giorgia Meloni called the new surrogacy ban “common sense” and celebrated it as protecting women and children from “commodification”. Others see the ban as the opposite of protecting women and children.

International rulings

The European Court of Human Rights often examines events in its member countries (which include Italy) to determine whether there is broader consensus on an issue. In 2014 it looked into surrogacy in its Mennesson v France judgment. And in 2019 it issued an advisory opinion on the matter.

While it found no consensus on the lawfulness of surrogacy arrangements, it decided that the rights of children born through surrogacy require “a possibility of recognition of a legal parent-child relationship”. Italy’s absolute ban goes against this reasoning.

In 2019, the British supreme court also invoked the child’s welfare as the main driver for judges to recognise intended parents as legal parents. To do otherwise in most cases, it concluded, risks leaving the child “legally parentless (and possibly also stateless)” — because they would be legally tied to a person living abroad and who did not intend to be their parent.

A UK study found that most surrogates don’t view themselves as the mother and would support recognising intended parents as legal parents from birth.

Meloni’s government, led by the far-right Brothers of Italy, has consistently focused on policies that promote what it sees as a “traditional” form of family. Running on a platform focused 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 the debate in the Senate, a Brothers of Italy senator called motherhood “the foundation of our civilisation”. Meloni’s policies, from banning surrogacy to restrictions on abortion, curtail reproductive choice — ideologically driven by an emphasis on “natural” motherhood.

While it is mostly straight Italian couples who use surrogacy by going abroad, many of them will hide the fact that they had a child this way. Same-sex couples are even more restricted since they obviously cannot fly under the radar in the same way. Under Italian law, they also have no other choices for having a child together: they are banned from accessing IVF or adopting.

While legal scholars and activists question whether the law can hold up to legal scrutiny or how it will be applied in practice, same-sex parents express fear that they are faced with two impossible options: leave their country indefinitely, or stay in Italy and face prison time. Under the new law, they face up to two years in prison and a fine of up to €1 million (£836,000).

Italy’s surrogacy ban is perhaps no surprise in an era of populist politics, where LGBTQ+ and women’s rights are increasingly weaponised, but it should still worry us.

• Dr Dafni Lima is an assistant professor in law at Durham Law School. This article first appeared in The Conversation.