Uterus for rent a universal crime: the left against

The first day of the debate on the bill signed by Maria Carolina Varchi closes as expected: oppositions against it -with different positions between the PD calling for the status quo to be maintained and +Europa wanting a regulated GPA. Main arguments against: the rights of rainbow families and the possible unconstitutionality of the rule. Here a summary of the speeches and an'interview with constitutionalist Silvia Niccolai
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Yesterday saw the first day of debate in the House on the bill on the uterus for rent crime signed by Maria Carolina Varchi and others.

The entire discussion can be reviewed here.

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

The House saw more or less what was expected: the majority in support of the bill, the opposition against, with some differences: +Europa (but even, in the square, the CGIL new rights) calls for a law regulating GPA, while the PD wants to keep things as they are, uterus for rent a crime only if carried out in Italy. A few votes in favour of the bill might escape from the left, but the substance is this.

A summary of the discussion:

after an introduction by presenter Varchi, Riccardo Magi of +Europa argued at length against the decree, claiming among other things that -violating the principle of self-determination- the law would be against 'the dignity of women'. (i.e. against her freedom to rent out her womb) as well as constituting a legal abomination. Marco Grimaldi of Verdi-Sinistra Italiana said that the bill would constitute the 'worst homophobic law in history'affirming the right of LGBT people to become parents, and mentioning Michela Murgia according to whom getting pregnant does not mean being a mother. Also for Grimaldi the ddl is 'a legal abomination'. Children born of GPA, he said, "unlike all the others are really wanted".

For Marina Aliprandi Marchetto of FdI the uterus for rent highlights "a balance of power in favour of the world's wealthiest class."She described at length the perinatal mother-child relationship, expanding on maternal-fetal microchimerism and reiterating that separating the woman from the creature is barbaric. For her, GPA is 'one exploitation that takes us back to slavery, as well as one of the most absurd contradictions of our time'.

According to Federico Gianassi of the PD the law does not stand 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 should it die in the first two years of life, speaks of the risk of species selection and manipulation of the limits of nature only to pander to desires that are not rights.

Benedetto Della Vedova of +Europa says that wealthier people will not be affected by this rule and that children born with GPA will be subject to stigma. He assures that this 'reactionary flagship regulation', if passed, would be deleted in the future, and urges those who are presenting it to stop. For Laura Boldrini, PD, Italy has become 'Melonia', country forging relations with dictators and wanting to stop rights. It claims that the parents would end up 'in prison' and the children 'would be abandoned'. The sole purpose of the rule, he says, is discrimination against LGBT people.

According to Andrea Quartini of M5S the bill is 'violent and anti-scientific' and also risks jeopardising heterologous fertilisation, since 'commercialisation of gametes is a crime' but there are no donors in Italy. Luana Zanella of the Greens-Italian Left, opens her speech with a harsh and articulate invective against the GPA and its 'business that will reach USD 129 billion in 2032', but concludes by stating that the ddl is only a manifesto law without any consequences for the phenomenon. Lastly, says Zanella, 'the problem of the transcription of birth certificates formed abroad is not addressed'.

Alessandro Zan, PD, defends the 'solidarity GPA' and considers the bill unconstitutional. In his opinion, the ddl is just a weapon of mass destruction to hit LGBT families and reduce Italy 'to Orban's Poland and Hungary'. Chiara Appendino, M5S, speaks of a law 'against gays, lesbians and transsexuals' and announces an amendment 'for full adoption and not in special cases' (?)

On the question of possible unconstitutionality of the decree, we questioned costitutionalist Silvia Niccolaia professor of Constitutional Law at the University of Cagliari who has long studied the issue of gestation for others:

could the so-called universal offence of surrogacy be unconstitutional?

"On the contrary, there are good reasons to believe that it is a solution fully compatible with our constitutional order, which, moreover, is without prejudice to the political assessment as to whether it should be adopted'.

What reasons?

"First of all the hypothesis of punishability in Italy for acts committed abroad is provided for in general by the Criminal Code (Article 7) and is already operative: e.g. 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 Article 7'.

Could this also apply to gestation for others?

"GPA consists of the planned separation of a child from its mother at birth and the exercise by adults of a complex of powers over a defenceless creature. According to our constitutional order, as well as the vast majority of countries in the world and the guidelines of many international bodies, this is an inhuman practice. Academic discussions about women's right to self-determination and sympathy for those who want a child at any cost must not conceal that, in reality, the reality of things, GPA is a trade in children and parental status. Given the seriousness and nature of the phenomenon there are, at least in principle, prerequisites for national criminal law to be applied to acts committed abroad as is already the case, for example, for crimes of exploitation of prostitution. In particular the cross-border structure of the phenomenon, which is realised through so-called procreative tourism, may make this solution seem reasonable and proportionate'.

Could the law also retroactively affect those who have already had children through surrogacy?

"Evidently not. Every child already born (or rather already only conceived, perhaps already only commissioned up to the day the new provisions come into force) will not see its commissioners affected by the new provisions. Even after the possible entry into force of the new rules, violation of the prohibition would not in itself affect family statuses and/or ways of acquiring them: the biological parent would of course remain the biological parent and the intended parent would remain obliged to take the necessary steps to fulfil his or her commitments towards the child (today: adoption in special cases). It is undeniable that, in fact, the knowledge of facing a sanction might discourage the intending parent from taking these steps, but the argument, as they say, 'tries too hard'. It forgets many things: those who undertake GPA under the new rules would be fully aware of the consequences they face both to the child and to the system; the The purpose of the new law is to discourage people from engaging in GPA so that no more children are born from this practice. There is no right to become parents, much less to become parents with GPA. There is no hiding the fact that the subject of children's rights is often invoked to legitimise GPA. I personally believe that precisely 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 of GPA, developing the very accurate solutions identified by case law'.

Is there not a risk that the new law is discriminatory?

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

Could this law also cover women who resort to heterologous fertilisation abroad?

'In no way. The woman who undertakes the heterologous procedure is the same woman who will become the mother of the child to be born, while the so-called 'surrogate' mother obliges herself to let the creature she has given birth to be taken away. They are two different things'.

What about So-called 'altruistic' GPA"without any compensation (very rare cases)?

"As the Court of Cassation recently clarified (S.U. judgment 28162/2022) the 'fundamental value of human dignity' is offended in both caseswhich is why GPA is prohibited by our legislation 'in any form whatsoever''.

According to some, it is pointless for an individual state to 'universalise' the ban: if anything, the government should work in international fora.

"The one does not exclude the other. On the contrary: it is evident that a universal ban in Italy would greatly strengthen our country's ability to act influentially in international fora. This is also testified by existing initiatives for the creation of the universal offence, which are numerous and without political colour: recently (Casablanca Declaration of 6 March 2023) a hundred signatories from 76 different countries called on 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 leading to the universal abolition of GPA'".


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