Italy recognizes surrogacy as a “universal crime”: symbolic measure or first step towards a global ban?

The stakes go beyond national borders. A number of initiatives have already set the ball rolling towards a global ban. Last April, the European Parliament adopted a directive to include surrogacy in the list of crimes covered by human trafficking. In 2023, a hundred experts of 75 nationalities met in Casablanca to officially sign a Declaration for the universal abolition of surrogate motherhood. Despite these initiatives, which are still rather symbolic at this stage, the question arises as to the extent to which a country can in practice penalize the use of surrogacy when it is carried out in a foreign country which itself authorizes it.

Interviewed by the Washington Post, Léopold Vanbellingen, Director of the European Institute of Bioethics, recalled the difficulty of condemning this practice by an individual state, as a “universal crime”.

For Italian Prime Minister Giorga Meloni, the stakes of this law are less legal than political: on the one hand, the text is a signal in favor of the international abolition of surrogacy by means of a treaty; on the other, it marks the refusal of the Italian authorities to have automatic recognition imposed on filiations resulting from surrogacy carried out abroad.

On this latter point, we would point to two initiatives - one European, the other international - aimed at forcing States to recognize any act of filiation established in another country, including the case of surrogacy. On the one hand, the Council of the European Union is due to vote shortly on the adoption of a Regulation to this effect, justified by the President of the European Commission by the fact that “If you are a parent in one country, you are a parent in every country”. At a global level, the Hague Conference is considering a similar mechanism, through an international convention.

What is at stake in these two initiatives goes beyond the simple issue of filiation: in each case, automatic recognition of the legal parent-child relationship between the child and the sponsor(s) of surrogacy performed abroad could quickly lead to authorization of the practice of surrogacy on the soil of the country in question, by virtue of the principle of non-discrimination.

In Belgium, in the absence of a specific penal provision, surrogacy is tolerated, both in terms of its practice on Belgian soil and the recognition of filiation resulting from surrogacy carried out abroad. Other countries, such as England, try to distinguish between surrogacy deemed commercial (where the mother is “paid”) and non-commercial surrogacy. As Léopold Vanbellingen points out, however, the ethical issues are linked to the practice of surrogacy itself. Regardless of how it is classified, in all cases it entails real risks for the mother's health, as well as risks of exploitation, not only for her but also for the child, as the object of a contract that involves separating him from his mother as soon as he is born.