Womb for rent universal crime: the left against
The first day of debate on the bill first signed by Maria Carolina Varchi ends respecting the forecasts: oppositions against - with different positions between the PD which in fact asks to maintain the status quo and +Europa which wants a regulated GPA -. Main arguments against: the rights of rainbow families and the possible unconstitutionality of the law. Here is a summary of the interventions and an'interview with the constitutionalist Silvia Niccolai

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The first day of debate took place yesterday in the Chamber on the bill on the rented uterus, a universal crime signed by Maria Carolina Varchi and others.

You can watch the entire discussion again here.

The debate on the general lines ended with the announcement of the presentation of preliminary constitutional questions by Federico Gianassi of the PD and others, and by Magi-Della Vedova of +Europa.

In the Chamber we saw more or less what we expected: the majority in support of the bill, the opposition against, with some differences: +Europe (but even, in the square, the CGIL new rights) asks for a law that regulates the GPA, while the PD wants to keep things as they are, womb for rent crime only if carried out in Italy. From the left some votes in favor of the bill could escape, but the substance is this.

A summary of the discussion:

after the introduction of the presenter Varchi, Riccardo Magi of +Europa has argued at length against the bill, asserting among other things that - by violating the principle of self-determination - the law would be against "the dignity of women" (i.e. against her freedom to rent the womb) as well as constituting a legal abomination. Marco Grimaldi of Verdi-Italian Left said the bill would constitute the “worst homotransphobic law in history”, stating the right of LGBTQ people to become parents, and mentioning Michela Murgia according to which being pregnant does not mean being a mother. Even for Grimaldi the bill is "un legal abomination”. Children born to GPA, he said, “unlike all the others are truly desired”

For Marina Aliprandi Marchetto of FdI the rented womb highlights “a balance of power in favor of the wealthiest class in the world.” The deputy has long described the perinatal relationship between mother and child, focusing on maternal-fetal microchimerism and reiterating that separating the woman from the creature is barbaric. For her, GPA is “one exploitation that brings us back to slavery, as well as one of the most absurd contradictions of our time."

Second Federico Gianassi of the PD, the law does not stand up from a legal point of view and is "pure demagogy". Stefano Candiani of the League mentions the Gestlife case, the agency that guarantees the replacement of the child if he dies in the first two years of life, talks about risk of species selection and of manipulating the limits of nature only to satisfy desires that are not rights.

Benedetto Della Vedova of +Europa says that the wealthiest people will not be affected by this rule and that children born to GPA will be subject to stigma. He assures that this "reactionary flag rule", if approved, would be canceled in the future, and invites those who are presenting it to stop. For Laura Boldrini, PD, Italy has become “Melonia”, A country that establishes relationships with dictators and wants to stop rights. He claims that the parents would end up “in prison” and the children “would be abandoned”. The sole purpose of the law, he says, is discrimination against LGBTQ people.

Second Andrea Quartini of the M5S the bill is "violent and unscientific" and it also risks jeopardizing heterologous fertilization, given that "the commercialization of gametes is a crime" but in Italy there are no donors. Luana Zanella of the Greens-Italian Left, opens her speech with a harsh and articulated invective against the GPA and its “business which will reach 129 billion dollars in 2032”, but concludes by stating that the bill is just a manifesto law without any consequence on the phenomenon. Finally, says Zanella, "the problem of transcribing birth certificates issued abroad is not addressed."

Alessandro Zan, PD, defends the "Solidarity GPA" and believes that the bill is unconstitutional. In his opinion, the bill is just a weapon of mass destruction to target LGBTQ families and reduce Italy "to Orban's Poland and Hungary". Chiara Appendino, M5S, talks about the law “against gays, lesbians and trans” and announces an amendment "for full adoption and not in particular cases" (?)


On the question of possible unconstitutionality of the bill, we consulted the constitutionalist Silvia Niccolai, full professor of Constitutional Law at the University of Cagliari who has been studying the issue of gestation for others for some time:

Could the so-called universal crime of surrogacy be unconstitutional?

“On the contrary, there are good reasons to believe that it is one solution completely compatible with our constitutional system, which, moreover, leaves the political evaluation on the opportunity to adopt it without prejudice."

What reasons?

“First of all the hypothesis of punishability in Italy for acts committed abroad is generally provided for by the penal code (art. 7) and is already operational: for example for crimes of sexual violence and human trafficking. In these cases in accordance with international conventions, but the presence of a prior international convention is not required by the art. 7".

Could this also apply to gestation for others?

“GPA consists of the planned separation of a child from the birth mother at the moment of birth and the exercise by adults of a set of powers over a helpless creature. For our constitutional system, as well as for the vast majority of countries in the world and for the guidelines of many international bodies, this is an inhuman practice. Academic discussions on women's right to self-determination and understanding towards those who want a child at any cost must not hide the fact that, in reality, the GPA is trading in children and parental status. Given the severity and nature of the phenomenon there are, at least in principle, the conditions for national criminal law to be applied to crimes committed abroad as already happens, for example, for crimes of exploitation of prostitution. In particular the cross-border structure of the phenomenon, which is achieved with the so-called procreative tourism, can make this solution appear reasonable and proportionate".

Could the law retroactively also affect those who have already had children from a rented womb?

Obviously not. Every child already born (indeed already only conceived, perhaps already only commissioned until the day the new case comes into force) will not see his clients affected by the new provisions. Even after the possible entry into force of the new rules, the violation of the ban would not in itself have repercussions on family statuses and/or on the ways of acquiring them: the biological parent would obviously remain as such and the intended parent would remain required to take the necessary steps to assume one's commitments towards the child (today: adoption in particular cases). It is undeniable that, in fact, the knowledge of facing a sanction could discourage the intended parent from taking these steps but the argument, as they say, 'try too much'. It forgets many things: anyone undertaking the GPA with the new rules would be fully aware of the consequences they would face both towards the child and towards the system; the The purpose of the new law is to discourage people from undertaking GPA so that no more children are born from this practice. There is no right to become a parent, much less to become one with a GPA. There is no denying that the issue of children's rights is often invoked to legitimize the GPA. Personally I think that's right a clear stance against the phenomenon, such as the one represented by the proposal under discussion today, would make it easier for the legislator to regulate the position of children born from GPA, developing the very accurate solutions identified by jurisprudence".

Isn't there a risk that the new law will be discriminatory?

The ban already in force does not discriminate and applies to all those who use the GPA regardless of their sexual orientation. As such, its extension would not be discriminatory."

Could this law also concern women who resort to heterologous fertilization abroad?

"In no way. The woman who undertakes the heterologist is the same one who will become the mother of the child who will be born, while the so-called "surrogate" mother obliges herself to allow the child she gave birth to be taken away. They are two different things."

What if it were So-called “altruistic” GPA”, without any compensation (very rare cases)?

“As the Court of Cassation recently clarified (sentence SU 28162/2022) the 'fundamental value of human dignity' is offended in both cases, this is why GPA is prohibited by our legislation 'in any form'”.

According to some, it is useless for a single state to "universalize" the ban: if anything, the government should operate in international forums.

“One thing does not exclude the other. Indeed: it is evident that a universal ban in Italy would greatly strengthen our country's ability to operate influentially in international forums. Existing initiatives for the creation of the universal crime, numerous and without political colour, also bear witness to this: recently (Casablanca Declaration of 6 March 2023) one hundred signatories from 76 different countries asked States to 'sanction people who resort to GPA on their territory; sanction their citizens who resort to GPA outside their territory; work towards the adoption of an international legal instrument that leads to the universal abolition of the GPA'”.


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