GPA or Surrogacy
The Issue
The government's decision to establish surrogacy, or GPA (gestation for others),
as a universal crime has sparked intense and heated debates throughout the
country.
In reality, two distinct issues are at play:
Is GPA morally acceptable?
And if so, is it possible to make it a crime? And a universal crime at that?
These are different questions, yet they seem to be confused together.
If the issue is framed in terms of fascism and anti-fascism, the
government's incompetence, progressives versus reactionaries, and other such
simplifications, we fail to understand that the problem is neither simple nor
clear, but complex, with both positions — acceptance and condemnation — having
their own valid reasons.
Surrogacy is by no means a universally accepted fact, like equality before the
law; it is highly contested and debated, much more so than abortion, for
instance.
It is a complex and interesting issue, though in practice it
affects only a small group of people, usually the wealthy.
However, it cannot be dismissed as a mere whim of the rich: those who resort to
surrogacy do not do so to indulge a whim but to satisfy the natural desire for
parenthood, the strongest instinct in nature.
It is estimated that 60% of those seeking surrogacy are infertile women, 30% are
homosexual men (a number that is steadily increasing), and the remaining 10%
involve specific cases.
A central point of contention is whether the surrogate mother is compensated.
In theory, payment is prohibited even in countries where surrogacy is legal.
However, it is difficult to verify if the woman is renting her womb out of
goodwill or for financial compensation. It seems unlikely that a woman would go
through all the challenges of pregnancy and childbirth solely to give another
woman the joy of motherhood. This might happen between close relatives, such as
sisters, or in rare cases between a mother and daughter.
Opposing Arguments
The most common objection is that surrogacy goes against nature.
But the concept of nature is difficult to define: almost everything we do — from
agriculture to aspirin — modifies nature, including treatments for infertility,
yet no one opposes those.
However, we do set limits: for example, neglecting or killing one’s child is
against nature, and we consider mothers who do so insane. Similarly, we might
consider it immoral and unnatural for a woman to give birth to a child that is
not hers, in exchange for compensation.
This is a value judgment that cannot be proven by facts.
But we can note that we all accept adoption, in which biological parents are
replaced by other parents. What difference is there with surrogacy?
From the child’s perspective, which is our primary concern, is there any
difference? Naturally, biological parents are the norm, but there are bad
biological parents and excellent adoptive parents.
Parents are those who care for the children, who are not our possessions: we
only pass on the life we have received, we do not create it.
I would say the main argument against surrogacy is that a woman’s
body cannot be used like an incubating machine; this would reduce the woman (a
human being) to a mere machine.
I cannot think of my mother as a machine: for me, the woman who gave birth to me
is a miracle of life and love; this is true for everyone.
Pregnancy is what makes someone a mother, what triggers the
maternal instinct, the strongest of all natural instincts. It is not about
cells, embryos, or biological materials, which from a psychological point of
view are irrelevant, concepts not even known until relatively recently. The
opposition to surrogacy arises precisely from this disruption of nature, where a
woman carries and gives birth to a child that is not genetically hers.
This is what makes surrogacy seem repugnant, horrifying, like a
Frankenstein-like creation.
The surrogate mother is not the owner of the child and certainly cannot sell it:
this is the point of contention.
The mother-child relationship is not a relationship of ownership, but the very
foundation of life itself: a mother is always a mother.
You cannot compare pregnancy to services provided for children, like schooling,
summer camps, hospitals, medical care, and so on. Parenting is something
entirely different: it is directed toward a single, unique child, while other
services are aimed at groups of children.
Pregnancy involves an emotional bond that makes the woman feel like a mother,
whereas those managing children at summer camps, schools, or hospitals do not
feel like parents to the children in their care, even though they take care of
them for a period of time.
Legal Aspects
The legal issue is different: should GPA be recognized or prohibited, perhaps as
a universal crime?
Some ask: why is prostitution not a crime, while GPA would be? Both reduce a
woman to a mere tool.
I would say that not everything we consider immoral is a crime, only a small
portion. Prostitution is universally considered immoral, so much so that the
term “whore” is used to insult a woman (even when it has nothing to do with the
situation), but it is not a crime because it would be difficult to prohibit.
Instead, we focus on criminalizing the exploitation of prostitution (which is
not easy to enforce either).
Only a small part of what we deem immoral is sanctioned by law, mostly because
it is difficult to identify and punish these acts: think of the Prohibition era
in America, which did not stop excessive alcohol consumption but only
strengthened organized crime.
When it comes to GPA, it can be disguised as a regular extramarital sexual relationship. Especially once the child is born, what can we do? The child has the same rights as any other child, and legal sanctions could severely affect their situation and family life.
If we are talking about a crime committed abroad, things get even
more complicated.
There has been talk of universal crime, but that is not what the law issued by
the government entails. Universal crimes refer to cases like genocide or crimes
against humanity, which are considered universal and can be punished anywhere,
even in countries different from where the crimes were committed, and especially
by authorities other than those of the offender’s country. For instance, people
were sentenced to death at the Nuremberg trials for crimes that were not defined
as such in their countries, by authorities from other nations — an exception to
all standard legal procedures.
There are many precautions and reservations about these types of proceedings,
but this is not the place to delve into them.
In our case, however, not everyone can be prosecuted for GPA, but ONLY Italian
citizens, even if the act was committed abroad: so, it is not truly a universal
crime.
Generally, crimes committed abroad can be prosecuted in Italy even if committed
by non-Italian citizens, but they must involve the State or Italian citizens.
For example, if a terrorist attack is committed against an Italian or Italian
interests by a foreigner, they can be prosecuted in Italy: consider the trial
for the murder of Ilaria Alpi, which took place in Somalia by a Somali (who was
later found innocent, but that’s another matter).
A more specific precedent is Article 604-bis of the Penal Code, which extended
the punishment of pedophilia even if committed abroad. I am unsure whether, in
practice, these depraved individuals who engage in child exploitation, mostly in
Southeast Asia, are successfully prosecuted.
It seems difficult, as many have noted, to find evidence of an act committed
abroad in accordance with that country’s laws.
Especially once the child is born and brought to Italy, what can
be done? Removing them from parents not legally recognized in Italy and then
what? It is impossible to return the child to the country of origin and place
them with the woman who gave birth but does not consider them her child.
In any case, this is a human problem with no easy solution. Indeed, the law
provides practically no provisions regarding the child, only financial or prison
penalties for the responsible parties.
In my opinion, this is more about a proclaimed principle than something that can
be easily or practically enforced.