The Italian parents of a child who was recently born in the US via surrogacy say they are too afraid to return home since Giorgia Meloni’s government enacted the west’s most restrictive law against what she described as “procreative tourism”.
The gay couple could be among the first Italians to be prosecuted under the law, enacted in early December, which extended an outright ban on domestic surrogacy by making it a universal crime that transcends borders, putting them on a par with terrorists, paedophiles and war criminals.
The measure can lead to prison terms of up to two years and fines of between €600,000 and €1m (£500,000 and £840,000).
The couple’s son was born in San Diego, California, in mid-February. “They are very worried about returning to Italy because there’s the prospect of jail and fines,” Gianni Baldini, a lawyer for the pair who has made the case public on their behalf, told the Guardian. “They are now evaluating the possibility of remaining in the US.”
Meloni’s far-right Brothers of Italy had long campaigned for those who seek surrogacy abroad to be criminalised. After the law, which only applies to Italian citizens, was passed in parliament in October, Meloni said it was needed to “fill a regulatory gap to also prevent this inhumane practice in procreative tourism”. The measure is among several socially conservative policies pursued by her government in its quest to promote so-called traditional family values.
Until the international ban was enacted, an estimated 250 Italian couples sought surrogacy overseas, the vast majority of them straight people who turned to surrogates for health reasons.
The practice is legal and regulated in 66 countries, although most Italians access the procedure in the US or Canada, where surrogacy is not specified on the birth certificate and where their child can obtain immediate US or Canadian citizenship.
Baldini believes there could be “a few dozen” children who have been born abroad via surrogacy since the law was enforced. “We don’t know how many couples are currently in this situation, but from cases I have assisted in the past, I do know there are those who simply do not want to talk about it as they are afraid,” he said.
The couple in San Diego are both employed by a multinational company and so could potentially stay and work in the US; however, Baldini said they are also concerned about the climate towards LGBTQ+ families under Donald Trump’s administration, especially if the US president pursues his pledge of ending birthright citizenship.
The Italian law does not apply retroactively but even though the pregnancy was conceived before it was enacted, now that their son has been born the couple still risk prosecution if they return to Italy.
Baldini said a court battle in Italy would probably deter the couple. “It would be very delicate and there would be publicity surrounding the baby. They want to protect their child and don’t want their situation to become a cinema-style story.”
However, if the case did reach court, Baldini said he would aim to take it to Italy’s highest level and argue that the law is unconstitutional. “This is because it violates the principle of double jeopardy – you can’t be criminalised for something if it was not a crime in the country in which it was committed.”
The law was partially founded with the aim of protecting poor women around the world who are exploited for surrogacy. “There are certainly women who are exploited, but this happens in countries where there is no regulation,” said Baldini. “Italy can’t argue that surrogates in California are being exploited because in California it is perfectly legal.”
