This month, the United States is recognizing Pride Month, and parades around the country are demonstrating support for the LGBTQ+ community. In the meantime, Italy is going the other direction, and taking aggressive steps that will damage the Italian LGBTQ+ community. These efforts specifically touch on family formation issues and are meant to impair the right of equal access to fertility services and family recognition.
Criminal Prosecution Of Italians Turning To Surrogacy Abroad
Surrogacy arrangements have been illegal within Italy since 2004. For hopeful parents unable to have a child without the help of a surrogate, that meant going abroad. Often, the United States has been a destination for Italians seeking to have a child by surrogacy. But that may change soon.
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Earlier this year, the Justice Commission at the Italian Chamber of Deputies started a discussion on a bill to take the country’s domestic ban on surrogacy — as well as commercial egg, sperm, and embryo donation practices — to another level, and apply the laws to Italians seeking these fertility arrangements abroad. The proposed law would extend criminal penalties already established under the Italian law to “anyone, in any form, [to] realize, organize or advertise commercialization of gametes or embryos or surrogacy” even if such activities are carried out beyond Italy’s borders.
The criminal ramifications would apply regardless of whether the country where the fertility treatments take place considers the surrogacy or donation arrangement fully legal. Criminal penalties in the proposed new extraterritorial law include imprisonment of up to two years, as well as a fine of up to 1 million euros. While the law has yet to be enacted, its passage would create a forceful deterrent for what would otherwise be a legal and consensual contractual arrangement in other countries!
Equal Treatment Or Discrimination?
As a technical matter, the law treats same- and opposite-sex couples equally. One Italian group, the Rainbow Families, knows that facial neutrality is never the end of the story. Its president, Alessia Crocini, explained to Italian media that while 90% of Italian families who choose surrogacy are opposite-sex couples, they would rarely, if ever, be at risk of criminal punishment. That’s because straight couples can often go through entire surrogacy arrangements in secret, appearing merely to have given birth while living or traveling in another country, without the government asking questions. The practical result, therefore, is that the harsh criminalization would only affect gay couples, who are generally unable to hide that their child was born through a surrogacy arrangement when their child’s birth certificate shows two fathers as the parents.
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One Italian City Would Even Kick Some Moms Off Of Their Children’s Birth Certificates
That’s not the only extreme measure that the Italian government is taking against LGBTQ+ families. Last week, the Public Prosecutor’s Office in Padua took action to contest 33 birth certificates registered by the Paduan mayor Sergio Giordani, from 2017 to now. The action sought to effectively cancel and remove the second parent from the 33 birth certificates where two women were named as parents. Basically, the public prosecutor is working to amend the children’s birth certificates to remove the nonbirthing mother from the form. The result is that children who have enjoyed two legal parents, some for the past six years, may suddenly be without a second legal parent, denying the family the legal stability that straight couples enjoy: inheritance rights, custody, medical decisions, etc. The consequences could be disastrous. For these children, there are no other persons contesting the parentage or standing ready to have their names added to the birth certificate once one mother is kicked off.
Mayor Giordani has been steadfast in his stance of including two mothers, as appropriate, on a child’s birth certificate. He characterized the transcription of birth certificates to include both mothers as an act of nondiscrimination and that the process was born out of an “act of responsibility towards these littles ones.” Afterall, if the Public Prosecutor’s Office prevails, these children will be left with only one legal parent.
Italian Family-Formation Attorneys Weigh In
Italian attorney Ida Parisi, a practitioner of family and fertility law in Italy (and a previous podcast guest), explained that if the proposed law passes, this could also affect Italians seeking egg or sperm donation fertility treatments in other countries (such as the U.S.) where it is legal for a gamete donor to receive compensation. This may be considered a commercialization under the proposed law. Further, the proposed law might also affect the process of egg and sperm donation in Italy considering that, due to the shortage of Italian donors, Italian fertility centers import gametes from foreign tissue banks, paying them for the costs inherent with the processing and preparation of the gametes.
Parisi explained that the stated main goal of the proposed law is protecting a surrogate’s dignity as “a woman cannot be reduced to an ‘incubator’ no matter if she is acting on a voluntary basis.” The Italian Parliament has further stated its goal is to stop the “baby selling” market, because children should be born within a “traditional” family composed of a mother and a father. (No hiding the discriminatory intent there.) Unfortunately, Parisi explains, children’s rights are the last aspect to be considered by the bill. The proposed law risks minors being removed from their parents, and parents risking imprisonment without consideration of the children’s rights, or the individual’s rights to a family.
On perhaps a hopeful note, Parisi believes there are many aspects of the proposed law that the Italian Constitutional Court might find to be in contrast with the Italian Constitution and that might lead to a declaration of unconstitutionality of the law itself.
In fact, Italian attorney Alexander Schuster added that “the Italian Constitutional Court already, in 2021, denounced the current lack of regulation protecting children born through IVF, in the context of lesbian couples, as a serious violation of fundamental rights. As often is the case, Parliament does not fulfill its mission and fill the gap.” Mayors and some judges have tried to act while legislators ponder their options. Schuster described how mayors like Giordani in Padua ensured that the Constitution was alive and invoked its provisions to give those children two parents at birth. “Yet their actions have been declared unlawful by the Supreme Court. Hence the chaos in Italy.”
We can only hope that the Italian Constitutional protections for all families ultimately prevail over bad legislation and harmful judicial action.
For all of its efforts, Italy can’t stop couples from loving each other. And it can’t stop couples from growing their families. But its conduct in this arena does succeed at one thing: causing LGBTQ+ families, as well as all families needing these fertility treatments to needlessly suffer the cost of instability and emotional harm from discrimination.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.