Maggie Rogers
In October 2024, Italy passed a bill that criminalizes surrogacy for Italian residents, no matter where the surrogacy is performed.[1] Surrogacy on Italian soil has been illegal since 2004,[2] but this new law makes it a universal crime,[3] a designation typically reserved for crimes against humanity. Giorgio Meloni, Prime Minister of Italy, justified this criminalization declaring it a “common sense rule against the commodification of the female body and children.”[4] Though Meloni and members of her party often use this reasoning to support their position, Italian scholars have labeled this law as a blatant attack on LGBTQ+ couples,[5] who, upon the creation of this bill, have no legal pathway to creating a biological family.[6] The punishment for couples who are found guilty of entering into surrogacy agreements abroad may face up to two years in prison and a fine of up to 1,000,000 euros.[7]
While on average only ten percent of Italian couples who have historically used surrogacy abroad have been same-sex couples, this law seems particularly targeted at same-sex couples due to the greater difficulty it takes to conceal the fact that surrogacy was involved.[8] Since medical records from other countries will be protected due to various privacy laws, there will be little evidence against a different-sex couple who goes to another country for an extended period and returns to Italy with a baby, but much more suspicion would arise out of a same-sex couple in the same scenario.[9] Scholars accuse Meloni and other members of her party, all outspoken about their beliefs that children should only be raised by heterosexual couples,[10] of promoting this law to inhibit same-sex couples’ abilities to raise children, rather than out of concern for the safety of the women involved.[11]
No matter the ultimate motive for creating this law, it seems the chances of it being enforced are slim. One Australian state enacted a similar piece of legislation: The Surrogacy Act of 2010.[12] This Act made certain types of surrogacies a universal crime for residents of Queensland.[13] However, no one has been successfully prosecuted for partaking in commercial surrogacy agreements abroad.[14] According to the Australia Lawyers Alliance, only one couple in Queensland was referred to Family Court for prosecution in violation of this rule, but the criminal charges were ultimately dropped. In the civil portion of this case, the judge utilized a ‘best interests of the children’ approach, determining they should be allowed to stay with the intended parents of the surrogacy agreement, rather than the donor or surrogate mother.[15]
Jurisdictions across the world have very conflicting views of surrogacy.[16] Some have banned the practice altogether, some allow it with little to no restrictions, and others distinguish between commercial and altruistic surrogacies.[17] The primary distinction between these two forms of surrogacy is that commercial surrogacies involve payment while altruistic surrogacies do not.[18] Italy’s ban on surrogacy encompasses both altruistic and commercial agreements,[19] while most countries with such laws only ban commercial agreements.[20] One country that utilizes a hybrid approach includes India, whose laws have limited altruistic surrogacy availability only to heterosexual couples,[21] demonstrating that the intention of limiting LGBTQ+ couples’ options for starting a family is not unique to Italy.[22]
While Italy’s universal criminalization of all types of surrogacy is certainly on the more restrictive end of the spectrum, scholars suggest that the law serves as a statement rather than an actual law that will be enforced.[23] If the fate of this law is at all similar to that of Queensland, it is entirely possible that no Italian citizens will ever be prosecuted for seeking surrogacy abroad. However, scholars offer a different outcome under this law: since the majority of Italians find surrogacy to be immoral,[24] this is an attempt by the Brothers of Italy[25] to associate surrogacy with same-sex relationships to the point that both are seen as equally morally reprehensible.[26]
[1] Marta Paterlini Italy bans citizens from seeking surrogacy abroad, Brit. Med. J. 1 (Oct. 21, 2024)
[2] L. n. 40/2004 (It.).
[3] L. n. 169/2024 (It.) (amending the previous law from 2024, maintaining the same prohibitive language, but adding language that states surrogacy committed abroad will also result in punishment of Italian citizens).
[4] Giorgia Meloni (@GiorgiaMeloni), Twitter (Oct. 16, 2024, 1:09 PM), https://x.com/GiorgiaMeloni/status/1846614492421279808
[5] Paolo Caroli & Antonio Vercellone, “Rented Uterus” as a Universal Crime – The Italian Bill Proposing Universal Jurisdiction for Surrogacy, Verfassungblog (Feb. 15, 2024), https://verfassungsblog.de/uterus/
[6] L. n. 184/1983 (It.) (amendments to which required a couple to be married in order to adopt); L n. 76/2016 (It.) (same-sex couples are only able to form a civil-union, not a marriage)
[7] L. n. 169/2024 (It.) supra note 3.
[8] Meloni supra note 5.
[9] Id.
[10] Id. (quoting Federico Mollicone, president of the Culture Committee of the Chamber, as describing surrogacy by gay couples as “worse than pedophilia.”)
[11] Id.
[12] The Surrogacy Act 2010 (Qld) (Austl.).
[13] Id.
[14] Stephen Page, Surrogacy in Australia: The ‘Failed Experiment’?, PrecedentAULA (2023), https://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/PrecedentAULA/2023/6.html
[15] Findlay and Anor & Punyawong, [2011] FamCA 503 (Austl.).
[16] JY Lee, Surrogacy: Beyond the Commercial/Altruistic Distinction, 49 J. of Med. Ethics, 196 (Mar. 2023).
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Meloni supra note 5.
[24] Id.
[25] Joanna Sondel-Cedarmas & Francesco Berti, The Right-Wing Critique of Europe 62 (1st ed. 2022) (describing the Brothers of Italy, the party led by Meloni and responsible for this law, as having openly criticized gay marriage and same-sex adoption, in favor of the “traditional family model.”)
[26] Meloni supra note 5.