On Wednesday, the Italian government officially approved a bill presented by Fratelli d’Italia, designating surrogacy (Gestazione per Altri, GPA) as a “universal crime.” This means that Italian citizens who engage in surrogacy abroad could be prosecuted under Italian law, raising significant concerns about its practical implications. While legal experts express skepticism about the law’s applicability, it could lead to serious legal consequences for individuals seeking surrogacy, including the risk of imprisonment or hefty fines.
Surrogacy, often referred to disparagingly as “renting a womb” or “surrogate motherhood,” involves a woman carrying a pregnancy on behalf of others who cannot conceive due to medical or other reasons. Typically, heterosexual couples are the primary users of surrogacy services, though some same-sex couples also seek this option. The process can be commercial—where the surrogate is compensated—or altruistic—where she only receives reimbursement for expenses. While surrogacy is legal in numerous countries worldwide, regulations vary significantly.
In Italy, surrogacy is illegal, as stipulated in Article 12 of Law 40 of 2004. The newly passed legislation modifies this prohibition by adding, “If the facts referred to in the previous sentence are committed abroad, the Italian citizen is punished according to Italian law.” The penalties for anyone who engages in, organizes, or promotes surrogacy range from three months to two years of imprisonment, along with fines between €600,000 and €1 million. Essentially, the new law extends these penalties to Italians who travel abroad to pursue surrogacy, a practice that many have already undertaken.
Legal experts consulted by Post argue that designating surrogacy as a “universal crime” is primarily an identity-driven choice with symbolic value, complicated by legal inconsistencies that obscure potential consequences. One significant issue is the very concept of a “universal crime.” While it may be effective rhetorically, it lacks precision legally. Universal crimes typically refer to serious international offenses, such as genocide and crimes against humanity, which bear no resemblance to surrogacy, a practice permitted in many countries, including the UK, the Netherlands, Portugal, and Greece.
Constitutional lawyer Irene Pellizzone from the University of Milan contends that labeling surrogacy a “universal crime” lacks rationale. “We are talking about an offense punishable in Italy with a maximum of two years in prison; it is contradictory to classify a low-punishment crime as ‘universal,’” she states. Moreover, there are complexities concerning the prosecution of individuals using surrogacy abroad. Italian law already provides mechanisms to address this issue, with previous rulings deeming surrogacy a degrading practice.
Additionally, the principle of “double incrimination” poses another challenge: for an act to be punishable in Italy, it must also be considered a crime in the country where it occurred. This legal principle, supported by precedents from the Court of Cassation, raises questions about the viability of prosecuting individuals for engaging in a legal practice elsewhere. Legal scholars emphasize that it would be unjust to penalize someone for actions deemed legal in another jurisdiction, especially when applying laws related to completely different offenses.
Despite the legal ambiguities surrounding the bill, it does provide mechanisms to initiate investigations and potential prosecutions against individuals who opt for surrogacy abroad. The implications of this law are particularly concerning for children born through assisted reproduction. According to lawyer Vittorio Manes from the University of Bologna, the new law could have devastating effects on these children, especially if parents face legal action, potentially jeopardizing the children’s welfare. The fundamental legal principle of the “best interest of the child” emphasizes the need to prioritize children’s well-being in legal matters.
