“Rented Uterus” as a Universal Crime

The principle of universal jurisdiction (UJ) has traditionally been grounded in the idea of a collective response to the most heinous crimes on a global scale. Italy, a country that currently lacks universal jurisdiction for international crimes, is in the midst of deliberations on a proposed bill advocating for the use of universal jurisdiction in cases of surrogacy. This analysis explores the peculiar approach Italy is taking towards universal jurisdiction, presenting two key arguments. Firstly, we contend that the underlying political motive behind this bill is to curb all forms of same-sex parenthood, inadvertently resulting in a criminal law framework that would specifically impact male gay couples. Secondly, we draw a parallel with “memory law”, illustrating how legal mechanisms initially established in the enthusiasm of the ‘90s are now being repurposed as instruments for divisive political agendas.

Even before ascending to the position of the first female prime minister of the Italian Republic, Giorgia Meloni ardently championed the application of universal jurisdiction (UJ) to what she terms the “universal crime of rented uterus”, referring to surrogacy. Often framing surrogacy as a crime committed by wealthy same-sex couples against the dignity of women, she has garnered media attention. Members of Meloni’s party have gone so far as to label surrogacy by gay couples as “worse than paedophilia”. Notably, this discussion largely disregards the fact that surrogacy is predominantly utilized by different-sex couples.

After two prior attempts to introduce such legislation in 2018 and 2020, the Chamber of Deputies, one of the two chambers of the Italian Parliament, approved Bill No. 887 last July. The bill is currently under discussion in the Senate. In the original draft of the bill, presented in February 2023, the criminalization of surrogacy – already in force on Italian soil and punished with detention, up to 2 years – should have been extended to instances “even when committed abroad”. Some pointed out that this could lead to the prosecution of many foreigners legally engaging in surrogacy in their countries – consider the cases of prominent (self-identifying heterosexual) individuals like Nicole Kidman, Cristiano Ronaldo, and Meloni‘s supporter Elon Musk – upon their entry into Italy. The version of the bill adopted by the Chamber now limits Italian jurisdiction when the crime is committed abroad by Italian citizens, leaving unpunished foreigners who happen to be on Italian soil. Yet, it still includes Italian citizens who may legally undertake surrogacy abroad, where they permanently reside, such as pop singer Tiziano Ferro.

A law to distract from the real issue of LGBTQI+ parenthood

In our view, this bill has not much to do with surrogacy, which is already a criminal in Italy, nor with an effective prosecution and punishment of surrogacy committed abroad. For Meloni, this law holds a clear political significance. It seeks to delegitimize both the left and its representation as a protector of women’s rights and the LGBTQI+ movement. Moreover, in contrast to what Meloni calls the “gender theory”, she is positioning herself with this bill as the “true supporter of women”. In fact, we believe that the actual reason for this proposal by the current majority in the Parliament is creating a public discourse in which surrogacy ends up overlapping with same-sex parenthood. Consequently, same-sex parenthood relates to all the controversies and stigma that are, correctly or not, attached to surrogacy.

We argue in the following that the consequences of this bill are twofold. First, the government has forced LGTBTQI+ movements to be on the frontline protesting its enactment. Second, it made the public discussion on surrogacy connected with the question of same-sex parenthood.

When it comes to access to parenthood, Italy is one of the few countries in the EU (and more generally in the West) where same-sex couples do not enjoy the same rights as different-sex couples. Only a married couple composed of a man and a woman can adopt, and only a man and a woman can access In Vitro Fertilization (IVF) on the territory of the State and be automatically recognized as the parents of the baby born thereof.

A great portion of Italian society, including some parts of its relatively conservative sectors, is closely acknowledging that one should focus on the best interest of the child rather than the gender of the parents. Moreover, one effectively advocates for the right of same-sex couples to access all forms of parenthood available to different-sex couples. Accordingly, the right-wing parties have difficulties in upholding the current (conservative) legal regime. This is why they set the discourse of the political debate on same-sex parenthood on surrogacy rather than on equal access to adoption and IVF. Surrogacy is a much more controversial topic. One is no longer dealing with an almost self-evident violation of the principle of equality. On the contrary, surrogacy implies a clash of important conflicting values: the right of self-determination of the woman; the principle of inalienability of body parts; the interest of people to fulfil their plan of parenthood; and seeing a human being (the new-born) as – technically speaking – the subject-matter of a contract.

We are not expressing here our opinion on the complex ethical, political, and technical issues related to surrogacy. Contrary to same-sex adoption or IVF for lesbian couples, we want to highlight that surrogacy does bring about complex ethical, political, and technical issues. In other words, legitimate arguments can be deployed both in favour and against the liberalization of surrogacy. Adhering to one set of arguments rather than the other is simply a matter of political values and beliefs. In this light, the strategy of the Meloni government appears to be clear. With this peculiar bill, the government brings surrogacy back to the political debate and forces the left and the LGBTQI+ movements to take a position on it, thereby overshadowing the real violations of equality in questions of same sex adoption and access to IVF.

A crime just for male gay couples

While surrogacy is mostly carried out by different-sex couples, it is also true that male gay couples in Italy also resort to surrogacy abroad. According to the estimates from the Corriere della Sera newspaper, out of 250 Italian couples resorting to surrogacy each year, 10% are same-sex couples. However, should this law come into effect, the most plausible scenario involves the prosecution of only gay couples. This is due to the considerable challenge of obtaining evidence of surrogacy practices carried out by different-sex couples. In countries where surrogacy is legal, hospital documents are highly confidential and wouldn’t be disclosed to Italian prosecutors. A different-sex couple can conveniently undergo the procedure abroad, return to Italy, and be acknowledged as the biological parents of the child since there would be no way to ascertain or even suspect that the couple resorted to surrogacy. At the end of the day, the only thing the Italian authorities will see upon the arrival of the couple in the territory of the State is a man and a woman entering the country with a baby and a birth certificate stating them both as the parents of the new-born. In the eyes of Italian authorities, this situation is no different to that of a straight couple returning to Italy after traditionally giving birth abroad. Such a process is evidently not accessible for two men.

This is why LGBTQI+ movements were obliged to carry out a great campaign against this bill, causing friction with part of the feminist movements. Since the front of opposition to the bill was led by LGBTQI+ movements, it was easy for the right to deploy a discourse that gays supported surrogacy since surrogacy is the way gays have kids. Yet, this completely oversees the fact that one can still oppose surrogacy and be against its construction as a universal crime. Additionally, a great campaign was made to constantly discuss surrogacy in the framework of debates related to same-sex parenthood. Given that a significant portion of the Italian population appears to oppose surrogacy and the government has framed it in a way that associates surrogacy closely with same-sex parenthood, scepticism toward surrogacy is transferred to the broader concept of same-sex parenting among the public.

A law that unites vs. law that divides: a lesson to be learned beyond Italy

Interestingly, the surrogacy question initiated the public discourse on the principle of universal jurisdiction (UJ) for the first time. Unlike many other countries, Italy lacks UJ for international crimes. While Article 7(1)(5) of the Italian Criminal Code (1930) allows for the prosecution of offences, both by Italians and foreigners, when special provisions or international conventions establish the applicability of Italian law, scholars argue that this cannot be extended to international crimes outlined in non-self-executing international conventions. Italy has not yet aligned its criminal law system with the Rome Statute of the International Criminal Court. Furthermore, currently there is no specific provision for “crimes against humanity”, and the current government has not advanced the 2022 proposal for a Draft Code of International Crimes.

What lesson can be drawn from this Italian discussion surrounding the possible use of UJ for surrogacy? Clearly, the use of UJ for surrogacy is quite different from the “quiet expansion” of UJ concerning international crimes originating from the arrest of Pinochet in 1998 and currently finding paradigmatic instances in the German trials for crimes committed in Syria, Iraq, and Gambia. Yet, human rights scholarship often underestimates the following: legal tools are never neutral but always rooted in a cultural, political, social, and economic narrative. In short, their evaluation depends on how they are used.

UJ is somehow part of the euphoria of the 90s, and it is rooted in the myth of progress in liberal Western democracies. They were perceived as guardians of a cohesive global capitalist economy and armed with an expanding array of legal measures and judicial entities to address international crimes and human rights violations. After the disillusionment of the following decades, some of these instruments have turned into weapons of a social and cultural war. This is not just the case for UJ. A compelling illustration of this phenomenon lies in the so-called “memory laws,“ a legal instrument developed during the 1990s and early 2000s when the European Union selected the Holocaust as a narrative of Europe portrayed in the negative, a “negative founding myth”: “Memories of the Holocaust have served to legitimate both multi-cultural integration and humanitarian intervention. […] For both purposes, the Holocaust proved a useful past“ (here at 36).

In a transformed political landscape, however, memory laws have been repurposed by nations such as Poland (notably attempting to criminalize the use of the expression “Polish death camps”), Hungary, and, most significantly, Russia, conveying specific interpretations of historical events. This serves to self-legitimize and delegitimize adversaries, transforming memory laws from uniting into dividing legal tools. As Koposov argues, “[t]he politics of memory is the main instrument that Putin’s government has used to divide Ukraine and render it politically dependent on Moscow. That politics, and in particular the cult of the Great Patriotic War, has become central to the ideology of Putin’s regime”. In the EU context, memory laws served an inclusive function, representing a foundational moment for a common ethical pact underlying the newfound unity of Europe, which had been plagued by conflicts for centuries. However, on the Russian-Ukrainian front, these same memory laws were transformed into a tool for ideological conflict, ultimately escalating into a tangible and real war.

Memory laws can show us a possible evolution of UJ. Since the 1990s, the principle of UJ has been rooted in the unifying concept of shared humanity responding collectively to the most terrible crimes through global enforcement. At the very least, they were providing a “no safe haven” approach. The Italian initiative diverges from this principle by employing UJ to transfer internal ideological battles into criminal courts. Again, we’re not referring to the choice to either regulate or forbid surrogacy – which is already a crime if committed in Italy – but to the quite ideological way one instrumentalises criminal law. In this case, UJ does not refer to universally condemned behaviours since surrogacy is legally regulated in various countries. Instead, it is specifically wielded as a divisive instrument in an ideological clash against a particular social group: the LGBTQI+ community. As we have shown, this law has little to do with the effective prosecution of surrogacy committed abroad (since 90% of cases will likely not be found), but rather publicly associates gay parenthood with surrogacy, therefore implying an immorality of both. While not flawless and open to specific remarks or criticism, UJ and memory laws aimed at (re)affirming a shared humanity protected by law. On the contrary, in the most recent distortions, the same legal tools have been transformed into a weapon in the name of the current socio-cultural wars polarizing our societies.