Welcome to another guest blog edition written by friend of My Surrogacy Journey, Zaina Mahmoud, Researcher from London Womens Clinic. This week, last week we were in Cuba, this week we explore Italy…
On 25 September, Cubans and Italians went to the polls, making crucial decisions on, among other things, protections granted to the LGBTQ+ community and what it means to be a family. Whereas Cuba demonstrated a commitment to valuing diversity and inclusivity, (see our previous blog) Italy pursued the opposite route, electing Fratelli d’Italia, a neo-fascist party.
The party’s leader, Giorgia Meloni is very outspoken about her fascist views. She has blocked legislation that would have made misogyny, violence against the LGBTQ+ community, and violence towards disabled people hate crimes. She has been clear that the so-called “woke agenda” promoting equality has gone too far, and that Italy must roll back the (few) protections granted to marginalised communities.
Same sex couples in Italy
Currently, in Italy, same-sex couples are not granted the same legal privileges afforded to married heterosexual couples. Most obviously, Italy remains one of the few Minority World countries—and one of the few EU countries—that does not legally recognise same-sex marriage. It was only in 2016 that same-sex couples were permitted to formalise their union through a civil partnership. Only two months ago, Meloni restated her opposition to same-sex couples forming families, asserting that children’s best interests are solely served through the traditional, nuclear family, with a mother and father.
Her unabashed homophobia is continuously demonstrated, as she is dedicated to ensuring same-sex couples remain second-class citizens. She maintains that civil unions are “enough” for same-sex couples—presumably because it precludes them from becoming parents. Since the law requires adoptive parents to be married, this excludes all same-sex couples from adoption. Similarly, all forms of assisted reproduction are only available for married heterosexual couples, so same-sex couples (and single people) are forced to seek cross-border reproductive care to realise their dreams of becoming parents. When Italians pursue cross-border reproductive care, upon returning to Italy, they must navigate a complicated bureaucratic nightmare, dealing with courts and social services, and even then, they are not guaranteed legal parenthood of their child.
Surrogacy in Italy
Article 12(6) of the Statute on Medically Assisted Reproduction (40/2004) prohibits surrogacy arrangements, on the basis that they offend human dignity. Where surrogacy is undertaken abroad, the Italian position is clear: the best interests of the child do not prevail over the public policy interest of discouraging surrogacy. This is the case, regardless of the IPs’ sexual orientation, as demonstrated by two highly publicised cases: Paradiso and Campanelli v Italy and Judgment 33/2021.
Paradiso and Campanelli v Italy
Paradiso and Campanelli v Italy, a 2017 case heard by the European Court of Human Rights (ECtHR) in 2017, demonstrated the Italian courts’ willingness to make surrogacy as unattractive an option as possible—even if the cost was separating (heterosexual married) parents from their child.
In this case, the heterosexual married couple pursued a gestational surrogacy arrangement in Russia. In accordance with Russian law, at birth, the surrogate provided written consent to the IPs being registered as the baby’s parents. Upon their return to Italy, the Italian authorities refused to register the birth certificate, having been alerted by the Italian Consulate in Moscow the birth certificate was falsified.
Russian law requires at least one of the IPs be genetically related to the baby; here, the Russian fertility clinic certified that Campanelli, the intended father, was genetically related to the baby. Genetic testing later revealed this to be untrue, prompting criminal proceedings against the IPs for misrepresentation of civil status, the use of falsified documents, and breach of Italy’s international adoption rules.
Civil proceedings were also launched, and the child was removed from his home with the IPs and placed in a children’s home, before being placed with a new family. As this was conducted under strict anonymity, the IPs lost touch with the child. The ECtHR acknowledged the impact on the IPs but as the Italian courts had concluded that the child would not suffer harm due to the separation, the desire to reaffirm the State’s exclusive competence to recognise legal parenthood only where there was a biological tie or lawful adoption was deemed a legitimate aim.
Italian Supreme Court
In 2019, the Joint Chambers of the Italian Supreme Court ruled on a case related to recognition of parental status following a foreign surrogacy. The parents in that case were an Italian same-sex couple who married and pursued a surrogacy arrangement in Canada. Their marriage was registered in Italy as a registered partnership, under Article 32 of the Italian Statute on Private International Law.
They sought recognition of their parental status under Italian law, however, the Supreme Court held that recognition of the Canadian judgment would be in clear breach of Italian legislation—the previously mentioned Article 12(6) of Law 40/2004. The Supreme Court ruled that the child’s best interests must be balanced against the legislative aim of disincentivising surrogacy, and reluctantly ruled that the parental bond should be legally recognised without prejudice to any potential legal relationship between the child and the surrogate. To achieve this, the Court ruled that “adoption under special circumstances” “non-legitimising adoption”) was appropriate; “non-legitimising adoption” is a last resort option legally recognising the bond between the child and the IP, provided for under Article 44(1)(d) of Law 184/1983, but does not provide the same rights and responsibilities as adoption.
“Yes to the natural family, no to the LGBT lobby, yes to sexual identity, no to gender ideology!”
Urgent need for legislation
In Judgment 33/2021, the Supreme Court reiterated the urgent need for legislation to deal with these issues. However, Meloni’s determination to prevent the formation of non-traditional families in her pursuit to ensure the “end of motherhood” does not occur, renders it highly unlikely any legislative measures taken will result in a more favourable environment for surrogacy. Last year, Meloni was heavily involved in a campaign seeking to make surrogacy a universal crime, claiming to be interested in protecting children from being bought. Additionally, while a member of Parliament, she pushed for an amendment to Italian law, aiming to criminalise Italians involved in cross-border surrogacy arrangements. This amendment has not yet been approved by Parliament, but with her leading the country, it’s more likely to go through.
Meloni’s disdain and active discrimination against the LGBTQ+ community should alarm all. Instead, her election has been celebrated by many, including Hillary Clinton and Liz Truss who congratulated her as the first woman elected PM in Italy. To praise Meloni on the basis of her gender and claim her election as a feminist victory is wilful ignorance of what feminism entails. Of course, there is no unified “feminism”, but at the very least, it’s indisputable that fascism is incompatible with any type of feminism.