A Perspective on the Criminalisation of Procreative Tourism in Italy
‘Italy criminalises citizens who go abroad to have children through surrogacy’. When this news notification popped-up on my phone on a random day in October, I have to admit I was not particularly surprised. After all Italy has banned surrogacy since 2004 – I told myself - but as I delved into article, I started seething with indignation.
In fact, to be able to prosecute couples conceiving through surrogacy abroad, the Italian government classed surrogacy as a universal crime. If you are not familiar with this term, these are violations of human rights considered so severe and morally reprehensible to be subject to prosecution regardless of the jurisdiction of the country where they are committed - to give some context, genocide and war crimes fall under this category.
As I kept reading, I found myself blown up by the words of Italian PM (Giorgia Meloni), who defined this law: ‘a rule of common sense, against the exploitation of the female body and children’. With Human Rights Day coming up this week, on the 10th of December, I could not help but reflecting on whether bans on surrogacy actually protect or further threaten human rights.
As an Italian citizen – and most importantly as a woman – I cannot deny that I have a strong personal opinion on this matter. (If you did not figure it out by now, I am firmly against this ban as I believe decisions about women’s bodies and wombs should solely belong to women.) However, as a researcher in psychology I feel the need to discuss this topic objectively, or at least as objectively as possible.
What are surrogacy and procreative tourism and why has Italy banned them?
Surrogacy is a practice where a woman (surrogate mother) contractually agrees to conceive and carry a child for another couple (intended parents), and when this practice is conducted abroad it is referred to as procreative tourism (although better terms could be "reproductive travel" or "cross-border reproductive care"). This phenomenon is increasingly common among people from countries that prohibit surrogacy, with 250 Italian couples estimated to travel abroad to conceive their child every year.
The Italian government argues that conceiving a child in exchange for a monetary remuneration violates the human rights of surrogate mothers as well as children, or as the Italian PM puts it: ‘human life is priceless, not a commodity’. To fully explain this argument, I need to make an important distinction between commercial and altruistic surrogacy; essentially, the former entails a monetary remuneration beyond pregnancy-related expenses, while the latter does not. As such, the government deems commercial surrogacy - whether taking place nationally or abroad - unethical as it entails trading a human life for money (it is worth noting that altruistic surrogacy is also banned in Italy, but I will not comment on this as it is outside the scope of this blog!).
Despite my liberal views on this matter, I understand where their argument is coming from. It is inherently true that attaching a monetary incentive to surrogacy could put women at-risk of exploitation. Importantly, procreative tourism exacerbates this risk for women at socioeconomic disadvantage, particularly in low- and middle-income countries, perpetuating health and socioeconomic inequalities.
In fact, women may resort to surrogacy agreements to financially support themselves or their families, which would interfere with their ability to make an autonomous choice. This would not only take away their free will, but it could also pose risks to their physical and mental health, through pregnancy- and birth-related complications as well as antenatal and postnatal psychopathology.
Commercial surrogacy can also pose threats to children’s safety and wellbeing. Reassuringly, a review of the clinical literature shows no evidence suggesting that children born through surrogacy have poorer health outcomes compared to children born after other types of assisted reproductive technology; however, the authors emphasise that children born from surrogate mothers at socioeconomic disadvantage may present with increased health risks, because of previous multiple pregnancies or greater exposure to environmental risk factors.
Procreative tourism adds additional concerns about children’s welfare, due to the lack of an international legislation regulating this practice. In fact, laws in many countries fail to clearly establish the legal rights of children born through surrogacy, who may end up orphaned if they are not warranted legal parentage or citizenship. Similarly, these legislations do not clearly define the parental rights of surrogate mothers and intended parents, undermining the rights of the child (as well as those of surrogate mothers and intended parents), if conflicts over custody were to arise.
I agree these are all valid arguments, but I consider the view that bans will protect women and children’s rights as inherently naive and potentially dangerous.
Can banning surrogacy really protect women and children’s rights?
The prospect of facing up to 2 years in jail and an up to €1 million fine (yes, that is what Italian citizens are subject to if they breach the ban) can certainly stop some people from conceiving through surrogacy abroad. However, it may also encourage them to turn to a black market.
As history has shown us, restrictions on surrogacy promote the development of unregulated markets, forcing women in hardship to enter illegal surrogacy agreements. For example, a surrogacy black market has emerged in China (where surrogacy is illegal) producing an estimate of 10.000 children a year. As such, bans do not safeguard women, but instead they further endanger their rights as well as the ones of the children they bear.
Instead, a better option may be legalising and regulating commercial surrogacy at a national level, to safeguard the rights of surrogate mothers and children nationally as well as reducing the need for procreative tourism. Unfortunately, I have the feeling the Italian government may not be open to this solution. Furthermore, this would not completely address the issue, as some couples may still turn to procreative tourism to achieve cheaper surrogacy agreements.
As such, international legislations are needed to protect the rights of women and children’s worldwide. These laws should regulate surrogacy agreements globally by enforcing fair standards and guidelines that preserve women, children and intended parents’ rights as well as preventing regulatory disparity among different countries.
To conclude, while it is true that commercial surrogacy and procreative tourism may pose a threat to human rights, prohibition is an overly simplistic measure which may do more harm than good. This complex and nuanced matter requires a shared global effort to safeguard the rights of all the parties involved worldwide, and not draconian, unilateral laws that penalise both women and children.