Pagina dettaglio corso numero uno

by Lucrezia Rossi, Research fellow at the University of Milan

March 8 should represent not only a moment of celebration but also one of reflection. In the journey towards overcoming inequalities and discrimination, which began nearly 80 years ago in Italy with the recognition of women’s right to vote, significant progress has been made, yet there is still a long way to go!

Even a brief look at some of the most recent data confirms the relevance of this issue. Consider, for instance, the female employment rate, which, despite having increased, remains among the lowest in Europe (Female employment rate still below the EU average. National Council for Economics and Labor, CNEL & ISTAT, 2024); the number of women who have experienced workplace harassment between 2022 and 2023 (one million nine hundred thousand, Workplace Harassment Report, ISTAT, 2024); or the correlation between domestic violence and homicides (in Italy, 62.5% of femicides occur within the family, often following repeated instances of mistreatment that go unreported or are underestimated, Feminicide in Italy, EURES, 2024).

Faced with the complexity of gender-based violence and discrimination, politics has often sought to address these issues by resorting to criminal law (as seen in the recent bill introducing the crime of femicide) without considering the usefulness and necessity of a multidisciplinary approach that tackles the root causes of the problem. Among the various measures recently introduced, one of the most significant concerns the regulation of surrogacy, intended—according to the legislator—to protect and safeguard women (Law No. 169 of November 4, 2024).

In summary: the law governing medically assisted procreation criminally prohibits surrogacy (Art. 12, para. 6, Law No. 40 of February 19, 2004); however, until the recent parliamentary intervention, Italian citizens who resorted to such practices abroad, where permitted, were not prosecutable unless a request was made by the Minister of Justice under art. 9 of the Penal Code (see Criminal Court, Section III, October 28, 2020, No. 5198 and Criminal Court, Section V, March 10, 2016, No. 13525).

The aforementioned amendment, by explicitly stating that such conduct is always prosecutable under Italian law, has placed the offense within the scope of art. 7 of the Penal Code, thus eliminating the requirement for a request from the Minister of Justice.

However, this intervention is problematic, especially when comparing this offense to the category of universal crimes: these, in fact, are characterized by their extreme social danger and the severity of the punished conduct (for example, they include crimes such as terrorism, human trafficking, and organ trafficking…). Consequently, equating surrogacy with these offenses—even if only in terms of prosecutability for acts committed abroad by Italian citizens—raises questions about the reasonableness of this measure.

But that is not the only concern; doubts also arise regarding the rationale behind this intervention (and the prohibition in general), which is to protect women’s dignity and prevent the commodification of the female body. These same values have previously been used by the courts to deny the transcription of birth certificates issued abroad for children born through surrogacy, emphasizing how this practice, “regardless of the methods employed and the objectives pursued, intolerably offends women’s dignity and deeply undermines human relationships” (Civil Court, United Sections, No. 38162 of December 30, 2022).

This approach protects women in a paternalistic way, treating them more as objects in need of protection rather than as individuals capable of self-determination. It fails to recognize that in some cases, this practice could represent a free and conscious choice rather than necessarily a form of exploitation.

And yet, there already exist legally permitted medical practices that have an even greater impact on an individual’s physical integrity, such as living organ donation. In these cases, the risk of exploitation and commodification of the human body is mitigated through precise regulation designed to protect donors from undue pressure, requiring free, informed, and current consent while also ensuring donor anonymity. A similar approach could be adopted to regulate surrogacy, with necessary adaptations, considering that this practice also involves the child. Therefore, an effective regulation should take this aspect into account, ensuring a balanced protection of both the surrogate mother and the child.

Thus, this legislative measure, while presenting itself as a safeguard for women, seems instead to impose a single ethical and social vision of motherhood. In doing so, it reinforces outdated stereotypes and denies the diversity of female experiences: the absolute prohibition, in fact, indiscriminately penalizes all women, preventing them from making autonomous decisions about their own bodies while failing to address the structural causes that make some of them genuinely vulnerable. Moreover, the amendment is particularly punitive for a specific type of family unit, namely male homosexual couples, who are the only ones who, in practice, cannot resort to medically assisted procreation without relying on surrogacy and who are left with adoption as their only option to fulfil their desire for intentional parenthood.

This is why the extension of surrogacy criminalization appears to be a diversion, allowing politics to take a strong moral stance without addressing the structural difficulties that affect women in their daily lives.

If the real goal were to ensure that no woman is forced into surrogacy due to economic necessity, other aspects should be addressed first, such as improving women’s economic and working conditions to guarantee them real independence and full freedom of choice. Furthermore, more inclusive family policies should be adopted, considering new forms of parenthood and avoiding discrimination against those who cannot have children naturally. If the true aim were to protect women’s dignity, the starting point should be listening to their needs and introducing concrete measures to promote independence and self-determination, rather than imposing bans that ignore the complexity of their lives.

A truly feminist policy is not based on top-down prohibitions but on concrete tools that ensure freedom, autonomy, and equal opportunities. Thus, surrogacy, as regulated by Law No. 40/2004 and reinforced by the latest legislative intervention, risks being yet another imposition of a model of womanhood that fails to acknowledge the diversity of female experiences and the right to self-determination.