As Italy Criminalises Surrogacy Abroad, Why The Move Calls For International Regulation On The Subject – News18

Last Updated:November 21, 2024, 17:22 IST

Most European countries consider surrogacy as a violation of human rights. International regulation would ensure that exploitation of surrogate women who are at the socio-economic disadvantage stops

Italy’s new law means engaging in surrogacy in another country, even where it may be legal, will be a criminal offence for Italian citizens. (Photo: AP)

Pope Francis had in January called for a universal ban on surrogacy as a threat to global peace and human dignity. He had said surrogacy is a “grave violation” to a mother and child’s dignity, and exploits “mother’s material needs”.

Surrogacy is a complex subject, on which there is no international regulation, and people seek surrogacy services from another country.

Italy’s Senate passed a law on October 16 prohibiting Italians from seeking surrogacy abroad. Nearly all European countries ban surrogacy, but it is legal in the United States.

Italy’s new law means engaging in surrogacy in another country, even where it may be legal, will be a criminal offence for Italian citizens.

Prime Minister Giorgia Meloni’s right-wing party, ‘Brothers of Italy, had promised ban on surrogacy during the 2022 election campaign that brought her party to power.

Why Italy Considers Surrogacy A ‘Universal Crime’

The Catholic Church opposes surrogacy because it is “contrary to the unity of marriage and to the dignity of the procreation of the human person”, and is against in-vitro fertilization (IVF) because the process involves the disposal of unneeded embryos, which the church believes is immoral.

Pope Francis had earlier said surrogacy fundamentally violates the dignity of both the mother and the child. “The path to peace calls for respect for life, for every human life, starting with the life of the unborn child in the mother’s womb, which cannot be suppressed or turned into an object of trafficking,” he had said. He condemned surrogacy as a form of “false compassion”.

Italian lawmakers have condemned surrogacy as a “universal crime”. The language evokes the wording of the Italian criminal code for crimes considered so serious that they contravene “universal values”. Italy’s description of surrogacy ban has put it on a par with genocide and crimes against humanity.

Meloni has called the new surrogacy ban a “rule of common sense” against the exploitation of the female body and children. She said on social media that “human life is priceless and is not a commodity”.

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, restrict reproductive options, emphasising on “natural” motherhood. Her government has also been open about its anti-LGBTQ+ stance.

But many see the surrogacy ban as the opposite of protecting women and children. During the debate in the Italian Senate, Ilaria Cucchi, a senator for the Green and Left Alliance, said passing the law was an “inhumane act against parents and children, which only fuels stigma and discrimination.”

Filomena Gallo of the civil rights group Luca Coscioni Association, warned the law is “useless and even harmful if the aim is to protect people and prevent exploitation”, as reported by the American Magazine.

What Do Europeans Think Of Surrogacy?

Most European countries consider surrogacy as a violation of human rights. The European Union identifies surrogacy as a form of human trafficking in a revision to a juridical directive on trafficking. But some European have found loopholes and been able to locate women abroad who are willing to act as gestational surrogates.

Ukraine has become a surrogacy hotspot for many western European countries. Its government allows heterosexual married couples to conclude contracts for gestational surrogacy.

French newspaper Le Monde recently reported that a growing surrogacy industry in Mexico serves mostly Europeans, many of them gay couples.

Spain, like Italy and other European countries, recognises motherhood only through physical birth or through adoption. In many surrogacy-friendly jurisdictions, however, some intended parents appear on the birth certificate without the name of the birth mother through a pre-birth parentage order. European authorities will sometimes accept these birth certificates to establish parentage and confer citizenship on the child, according to a report by American Magazine.

In Greece, non-commercial surrogacy has been legal since 2002, allowing the intended parents to have legal parenthood at birth.

In countries like France and Germany surrogacy is prohibited. This means that the surrogate is the legal mother when the child is born. However, these countries still allow the intended parents to establish a legal bond with the child 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, as reported by The Conversation magazine.

The UK recognises surrogate as the legal parent. But allows transfer of parenthood to the intended parents through a parental order, which is less complex than the adoption process.

Commercialisation Of Surrogacy

Women who are at a socio-economic disadvantage may be coerced to be surrogates for financial compensation when they would otherwise not want to do so. This power dynamic could be exploited by commissioning parents from high-income countries like the US, seeking surrogacy services from the low-income countries like India or other Asian countries.

In some cases, a lack of adequate medical care and advice provided to birth mothers can result in harmful ramifications for the health of the woman and infant.

Commercial surrogacy can risk children being born into poor families. For instance, in Taiwan, a surrogate and the intended parents could not agree on the amount of compensation, so their baby girl was left with no parents and put up for adoption, as reported in ‘Bill of Health’, the blog of the Petrie-Flom Center at Harvard Law School.

Regulating International Surrogacy

Scholars have proposed that a new international regulatory framework could adopt an approach based on fair trade. Fair trade standards such as payment of a fair price, good working conditions, and transparency and accountability are also relevant to the regulation of surrogacy.

However, countries have to consent to be bound by an international agreement on surrogacy.

India has proposed legislation that would resolve legal disputes arising from international surrogacy, such as cases of conflict between Indian law and the law of the commissioning parents’ home country. Treating surrogacy as a legitimate avenue for earning money could help to reduce the stigma surrounding the practice and facilitate regulation. Countries’ immigration systems could also be useful in regulating surrogacy because babies must be granted a visa or passport to migrate from their birth country to their commissioning parents’ country, according to the ‘Bill of Health’ blog at Harvard Law School.

The Surrogacy (Regulation) Act, 2021 of India prohibits commercial surrogacy. Only altruistic arrangements where women acting as surrogates do not receive any monetary benefit are allowed. Further, it allows only gestational surrogacy where Assisted Reproductive Technologies (ARTs) such as In-Vitro Fertilisation (IVF) are used to induce the surrogate pregnancy.

Only married couples and ever-married single women (widowed or divorced) can seek a surrogacy. The intending parents additionally have to produce a “certificate of essentiality” that attests to medical indications that justify use of gestational surrogacy.