In this article, we will discover why surrogacy has recently been associated with the definition of “universal crime”.
Before continuing to read this article, you will find an article on surrogacy in Italy on my blog to have a complete view of the topic.
First of all, it is essential to clarify that surrogacy is prohibited in Italy by article 12, paragraph 6, of Law no. 40 of 2004, which expressly provides that “Whoever, in whatever form, carries out, organizes or advertises the marketing of gametes or embryos or surrogacy is punished with imprisonment from three months to two years and with a fine from 600,000 to one million euros”.
Last April 2022, the Justice Commission of the Chamber of Deputies adopted the introductory text of the bill n. 306 (Meloni proposal), which proposes to make surrogacy a “universal crime”, i.e. illegal even if the procedure occurs abroad.
This bill provides in art. 1 as follows: “1. In paragraph 6 of article 12 of the law of 19 February 2004, n. 40, finally, the following sentence is added: the penalties established by this paragraph are applied even if the offence is committed abroad”.
This means that anyone who, in any form, carries out, organizes or advertises the marketing of gametes or surrogacy, even if abroad, could be punished with the penalty provided for by Italian law. This is only if the bill is approved and regardless of whether such conduct is regulated and legitimized by foreign law.
The Meloni proposal needs to clarify, in any case, whether the punishment is limited only to Italian citizens.
On this last aspect, on the other hand, the Carfagna law proposal, n. 2599 (which was combined with proposal no. 306 during the related discussions) to have made an additional clarification; this bill has the purpose of prosecuting those who embark on a surrogacy journey abroad but it is only limited to Italian citizens.
The bill in question, if approved, would represent an exception to the principle of territoriality, governed by art. 6 of the penal code, according to which the Italian law is applicable in the territory of the state when an action or an omission has taken place in the exact boundaries of the state.
Generally, it is art. 7 of the penal code to establish the possibility of applying Italian law even if the fact considered a crime is committed abroad. This is possible only if specific conditions occur. Among these, certain legal provisions must establish the applicability of Italian law even if the fact is committed abroad.
In this case, if the proposed laws were approved, it would fall within these legal provisions.
In any case, the text of proposal no. 306, is characterized by a strong vagueness as it is never provided, not even by art. 12, paragraph 6, of law 40, the specific definition of surrogacy, probably leaving the task of interpreting its meaning from time to time to the collective conscience and knowledge. Not only.
The proposal’s text clashes with some principles of the Italian penal system and, specifically, with the focus on double criminality; based on the same, conduct punished by Italian law would also be punishable abroad, provided that the same is also punished under foreign law.
This circumstance would only exist in some countries where surrogacy is practised and where it is often also expressly regulated and governed by local law.
The approval of this bill would negatively affect the rights of minors who would be removed from their intended parents instead of being protected in the parental relationship with the latter and could then give rise to clandestine situations, which would lead to abuse, exploitation and prejudice for all the subjects involved.
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