06 Jul The surrogacy of maternity

Surrogacy, also known as “gestation for others” (GPA) o “uterus for rent”, is prohibited by law. The reference legislation is law no. 40 of the 2004, which regulates medically assisted procreation. This law establishes that any form of surrogacy is illegal and provides severe penalties for anyone who practices it, promote or facilitate.
Law no. 40 of the 2004, to the article 12, comma 6, it explicitly prohibits maternity surrogacy and provides severe penalties for those who carry out this practice, both for the doctors and healthcare facilities involved. The rule states: “Whoever, in any form, realizes, organizes or advertises the marketing of gametes or embryos or maternity surrogacy is punished with imprisonment from three months to two years and with a fine of 600.000 to one million euros.”
The reasons behind the ban are multiple and concern ethical aspects, legal and social:

1. Protection of Women's Dignity: It is believed that surrogacy can reduce the woman to a means of procreation, exploiting her body and compromising her dignity.
2. Interest of the Minor: There is a concern for the well-being of the child born through surrogacy, especially regarding his identity and possible psychological and social implications.
3. Prevention of Exploitation: Surrogacy can lead to situations of economic and social exploitation of women, especially those in conditions of economic vulnerability.

In case of violation of the law, the consequences are severe and concern both the commissioning parents and the structures and healthcare professionals involved. The sanctions include:

• Imprisonment and Fines: As required by law, penalties can include imprisonment of up to two years and fines of up to one million euros.
• Nullity of the Agreement: Any contractual surrogacy agreement is null and void and has no legal effect in Italy.
• Status of the Child: The child born from surrogacy abroad may face legal complications for the recognition of his status as the child of the commissioning parents in Italy.

The ban on surrogacy is the subject of debate in Italy, with strongly contrasting positions:

• Pro: Those who support the ban stress the importance of protecting the dignity of women and the well-being of children, as well as preventing the commercial exploitation of reproduction.
• Against: Those against the ban argue that surrogacy, if properly regulated, it could represent a solution for infertile couples or for single or homosexual people who wish to have children. Furthermore, they highlight how the ban forces many couples to turn to foreign countries where the practice is legal, with further legal and social complications.

Law no. 40 of the 2004 it is the main regulatory text that regulates medically assisted procreation in Italy. This law introduced a series of rules and prohibitions aimed at regulating artificial insemination techniques, paying particular attention to the protection of the rights of women and children.
The article 12, Comma 6 of Law no. 40/2004 establishes:
"Whoever, in any form, realizes, organizes or advertises the marketing of gametes or embryos or maternity surrogacy is punished with imprisonment from three months to two years and with a fine of 600.000 to one million euros.”
The reasons behind the ban on surrogacy in Italy can be divided into different categories:

1. Ethics and Morals: The practice of surrogacy is considered ethically controversial because it can be seen as a form of commodification of the female body. Surrogacy can reduce pregnancy to a business transaction, with potential negative implications for the dignity of women.
2. Legal and Social: From a legal point of view, Surrogacy creates legal complexities regarding parentage and child rights. There is also concern that surrogacy could lead to situations of economic exploitation, especially in contexts where women in situations of economic vulnerability may be induced to become surrogate mothers out of financial necessity.
3. Protection of the Minor: The psychological and social implications for children born through surrogacy are another relevant aspect. The Italian legislator has expressed concerns regarding the possibility that these children may face difficulties in their identity and relationship with their biological parents and clients.

The legal consequences for those who violate the ban on surrogacy in Italy are significant:

• Prison sentences: Imprisonment from three months to two years is foreseen for anyone involved in the practice of surrogacy.
• Financial Penalties: Fines can range from 600.000 to one million euros, very high figures which reflect the severity with which the legislator treats this practice.
• Nullity of Contracts: Any surrogacy contract is considered null and void. This means that such agreements have no legal value in Italy, and cannot be enforced in a court of law.

A complex aspect of the issue concerns Italian couples who go abroad to access surrogacy in countries where the practice is legal. This situation raises several issues:

1. Recognition of Affiliation: Upon returning to Italy, the legal recognition of the child as the child of the commissioning parents may encounter obstacles, since the practice is illegal on Italian territory. This can lead to lengthy legal battles for the recognition of parentage rights.
2. Criminal Consequences: Even if the surrogacy was carried out legally abroad, the commissioning parents can still be criminally prosecuted upon their return to Italy, since Italian law also provides penalties for those who promote or organize the practice outside national borders.

The ban on surrogacy is the subject of a lively debate in Italy. Positions are often polarized:

• In favor of the ban: They argue that the ban protects women's dignity, avoids economic exploitation and protects the rights of the child. They believe that the practice, even if regulated, can open the door to forms of abuse and exploitation.
• Against the Ban: Those who oppose the ban argue that subrogation, if adequately regulated, it could offer a solution to many infertile couples, including singles and same-sex couples. They point out that the ban forces many couples to turn to foreign countries, creating further legal and bureaucratic complications.

The future of surrogacy legislation in Italy is uncertain. On one side, the growing demand for alternative solutions for procreation could lead to a revision of the law. On the other, the deep ethical and moral convictions underlying the current ban represent a strong obstacle to any legislative change. The public debate and future legal decisions will be crucial to determine the direction in which the Italian regulatory framework will moveTop of module