Analysis
Italy makes international headlines banning surrogacy as a ‘universal crime’
As Giorgia Meloni always wanted, pregnancy on behalf of others has become a “universal crime” in our small country. However, beside allowing Fratelli d'Italia to boast of another flagship achievement in criminalization, this changes nothing in the world at large.
On Wednesday the Italian Senate hosted student guests and offered them a spectacle of “ideological frenzy” and “exercises in dogma,” as someone described it, instead of a culture of debate and reasoned criticism. There were over-the-top-speeches and war cries reminiscent of the crusade against Eluana Englaro’s father [a young woman in a permanent vegetative state whose father fought for the right to take her off life support in 2009], slogans such as “Long live women!” and “Long live children!” and constant calls to order from the chairwomen on duty.
Amid this scene, the last phase of the approval process of the Varchi Bill was carried out. With 84 votes in favor and 58 against, the bill, which had passed the Chamber of Deputies in July, was approved, amending Article 12 of Law 40/2004 by criminalizing surrogacy on behalf of Italian citizens even if it takes place abroad.
As Giorgia Meloni always wanted, pregnancy on behalf of others has become a “universal crime” in our small country. However, beside allowing Fratelli d'Italia to boast of another flagship achievement in criminalization, this changes nothing in the world at large: in no less than 66 countries (out of the total of 193), surrogacy is legal and regulated, both in the not-for-payment form (for example in the Netherlands, Belgium, Denmark, the Czech Republic, Greece, Portugal, the U.K., Ukraine, many U.S. states and Canada) as well as in the remunerated form.
And whether this Italian government likes it or not, children will continue to be born in those countries, both to straight couples (the majority of those who use this type of assisted reproduction) and gay couples, with the help of women who choose to bear their children, with or without pay. However, as of Wednesday, Italian parents – especially gay male couples, more easily targeted by those who will presumably be expected to question them about how their children, with regular papers from abroad, were born – could be charged on their return to Italy and risk three months to two years in prison and a fine of €600,000 to €1 million.
While that is shockingly high as it is, it wouldn’t be enough for the new crime to fit under the category of those for which the Italian Criminal Code provides for prosecution even if committed abroad, such as pedophilia, terrorism, genocide, etc. – crimes that must share the two criteria of being commonly acknowledged as harmful to society and punished with a minimum sentence of 3 years. To bypass these requirements, the Varchi Bill was set up as a special law.
However, according to many jurists and as was stressed by some of the opposition senators on the Senate floor, this newly approved law is not only unconstitutional and ripe for challenges before international courts, but, above all, it is unenforceable. As Attorney Francesca Re of the Luca Coscioni Association explained to il manifesto, “first of all, it violates the principle of legality, Article 25 of the Constitution, and several corollaries including the principle of culpability,” defined as the will to break the law and awareness of doing so. Basically, according to constitutional jurisprudence, conduct can be punished even if carried out abroad only if no doubt can arise that it is a crime (the principle of double incrimination), regardless of the penalties involved.
This is why the absurd parallel with pedophilia invoked on the Senate floor by Senator Zanettin (FI), which is universally punished despite the fact that the age of consent differs from country to country, does not hold up. “That is why the Supreme Court has dismissed the few legal proceedings started so far against couples who have used surrogacy in countries where it is legal, and who were under suspicion of having started the process in Italy [which was already illegal],” Attorney Re stressed.
On the Senate floor, the opposition senators appeared united behind the position that the supranational dimension introduced by the Varchi Bill was a “legal disgrace” (while Zanettin claimed that the majority had “never talked about a universal crime”). There are, however, many different views and positions on surrogacy among the center-left. But all of that was erased due to the lack of a real parliamentary debate.
“A missed opportunity,” said senator Valeria Valente (PD), who is personally against surrogacy.
Senator Elisa Pirro (M5S, pro-surrogacy) accused: “This is organ communism: as a free Italian women, I can give my kidney, but I cannot lend my womb.”
“Is it really freedom when our bodies and procreative capacity become the object of a commercial exchange?” asked Senator Lorenzin (PD), while she voted against the bill in line with her party.
The “debate,” if it could be called that, was raging since the morning, when the preliminary objections on grounds of unconstitutionality presented by the opposition were rejected. There was plenty of rhetoric from the majority about surrogacy being “detrimental to the dignity and freedom of women and the unborn child.” Some from the FdI went to striking extremes, such as Senator Lucio Malan, who theatrically railed against the “child trade” of certain “rich people” who want to “bring back slavery” for women. Or others like Senator Berrino, who confidently proclaimed that “the bond between the one who is born and the one who gives birth is indissoluble” and that “women’s ability to have children is the highest thing that Nature has given them.”
Instead, PD, AVS, M5S and IV emphasized that the bill should have been aimed at preventing the exploitation and coercion of women, calling for the practice of surrogacy to be regulated rather than pointlessly banned. They identified three obvious categories targeted by the law: people born from surrogacy, some already adults, who will be penalized and stigmatized by this unreasonable law; gay male couples (and in general, “LGBTQ ideology,” specifically attacked by Deputy Carolina Varchi from the FdI); and the women surrogates themselves, deemed to be “victims” – “small, vulnerable and incapable, so that someone else must decide for them,” as Susanna Camusso poignantly pointed out.
“Women should not be ‘protected’ as the right wing wants. Women must be allowed the right to choose. The truth is that the right wants the ‘moral state’ to decide for them.”
Originally published at https://ilmanifesto.it/allarme-per-il-reato-universale-sui-media-di-mezzo-mondo on 2024-10-18