Gestation for others (Gpa), better known as surrogate motherhood (or rented womb), in Italy becomes a universal crime thanks to a bill, which bears the signature of Fdi deputy Carolina Varchi, approved on Wednesday by the Senate and previously from the Chamber. In Italy, GPA has already been a crime for twenty years, based on Law 40, but now the punishability is also extended to those who have practiced it abroad who therefore risk sentences of up to two years’ imprisonment and fines of up to one million. of euros.
We publish the comment of Alberto Gambino, professor of Private Law and member of the National Bioethics Committee.
A single article, which aims to effectively implement the ban on maternity surrogacy already provided for by law 40: if the facts “are committed abroad, the Italian citizen is punished according to Italian law”. The practice of so-called “surrogate motherhood” had already been strongly stigmatized by the Constitutional Court which in sentence no. 272 of 2017 stated that it “it offends the dignity of women in an intolerable way and profoundly undermines human relationships”.
Now it is a question of understanding whether the regulatory intervention will actually guarantee the containment of the growing phenomenon of Italians going to foreign countries where surrogacy is possible. Phenomenon that contributes to a sort of social legitimation that two human beings decide to turn to a woman so that she can complete a pregnancy with the implantation of an embryo fertilized even only in part by the clients’ gametes and at the end of the pregnancy deliver the human being born to the couple.
Thus transforming the birth of the child into a private, contractual matter, uprooting it from its innate social dimension which – as the birth of a human life – affects the entire community of associates.
The contractualization of pregnancy – almost always motivated by the conditions of dramatic poverty of the pregnant woman – contrasts with the conquest of the great Western democracies which have unified the rights of human beings, starting from their birth, through the concept of “Status”, this expression represents the non-negotiable dimension of the person: it is the relationship between oneself and the community in which one lives. The inviolable rights of a person who is about to come into the world are protected by the community and not by individual discretion.
To date, organized human communities have established that whoever is born is the child of the woman who gave birth to him and that in the event of abandonment, a public (not private) attribution of the legal parentage of the child is carried out to a couple who has the requisites of suitability established by a legal adoption procedure. Procedure in which the couple’s ability to live with a child, train him, help him grow is analytically assessed: this is exactly the protection that the law provides for the inviolable right of the child.
All of this dramatically changes in maternity surrogacy, because a public procedure for verifying parental suitability is replaced by an arbitrary private agreement that can be regulated at the pleasure of the clients. Thus the inviolable right of the born subject dies. Acts of will do not allow us to determine the rights of others as we would dramatically return to the darkest years of humanity.
It is important to draft an international convention that recognizes and affirms the universality of the crime of surrogacy.
The new Italian law – although it risks representing only a symbolic step if it fails to eradicate the phenomenon of procreative tourism of surrogacy – is on the horizon of the meritorious and urgent prospect of drawing the attention of public opinion and sovereign parliaments towards a phenomenon, which, repeating once again the exact words of the Italian Constitutional Court, “intolerably offends the dignity of women and profoundly undermines human relationships”.
