Reflections on surrogate motherhood
Following the approval of the Arengo Petition (Istanza d’Arengo) calling for the introduction into our legal system of the “universal crime” of surrogate motherhood — punishable even when committed abroad by citizens or residents — «the Secretary of State for Justice, Stefano Canti, has presented a draft law introducing a new article, 226-bis, into the Criminal Code, which punishes anyone who, in any form, “carries out, organises or advertises the commercialisation of gametes or embryos, or surrogate motherhood or gestation for others.” The penalties provided include second-degree imprisonment, a fine and, for healthcare professionals, a ban from practising the profession.» [https://tinyurl.com/yy4cj5vb]
For this reason, we believe it is worth offering some reflections and providing tools that might help clarify a shared judgment on the matter.
We believe that surrogate motherhood raises questions of an ethical, social and therefore political nature, from which we cannot remain detached. We are pleased that Secretary of State Canti has followed through on his public commitment to address the subject with precision and rigour, and for this reason we cannot let the matter drop (we are also glad that, in this instance, one political side did not shy away from the proposals put forward by Catholic pro-life associations).
What is at stake certainly concerns the status of women, their dignity and condition, the condition and status of the child, as well as the very meaning of motherhood.
What exactly does it involve?
«This reproductive practice is based on a contract “whereby a woman agrees to be artificially inseminated, in order then to hand over the newborn to the commissioning couple,” a contract that… “intolerably offends the dignity of women and deeply undermines human relationships,” “feeding an unacceptable commodification of the body, often at the expense of the most economically and socially vulnerable women… Surrogate motherhood establishes an unacceptable form of private control over the life of the pregnant woman and the newborn, in conflict with the fundamental principles of the legal system.”» [Arnaldo Morace Pinelli, SURROGATE MOTHERHOOD, https://tinyurl.com/mvuk658s]
Who is the child in the age of technology?
«Beyond the unborn child’s rights to know and seek their own origins and the history to which they belong, and to the protection of their psycho-physical integrity — the right to be treated and recognised as a subject, not an object, of law, to be safeguarded against practices unworthy of a human being such as production, commercialisation, destruction, manipulation, etc. — the issue points to the lack of a unanimous, worldwide consensus on the ontological nature of the unborn. It is very simple: if he or she is not biologically a member of the human species and is not a person, then who is he or she? What is he or she? This otherness, this reduction of the child to a thing, is the premise for its commodification, allowing it to be disposed of within a cycle of conception-production-abandonment-return — the last of these being particularly troubling, since the “guest child,” besides being abandoned by the surrogate mother, may also be rejected or even terminated if it fails to meet expectations (perhaps due to malformations or disabilities) or is simply no longer wanted.» [Giulia Bovassi, https://tinyurl.com/ydzuertr]
Is there a difference between “buying and selling” and a “regulated altruistic path”?
«Every human being, including the unborn child, can never become the object of a contract; a human being can never be a “thing,” “a good,” a commodity that is bought or sold — nor even one that is “given away,” perhaps under the guise of a neat donation agreement.
Only by firmly reaffirming this ontological truth — which holds regardless of the possible exploitation of women in conditions of poverty — can we finally escape the by-no-means-accidental misunderstanding whereby, alongside a “bad” surrogate motherhood because it is the object of a commercial transaction, there would supposedly exist a “good” gestation for others, carried out free of charge, out of altruism, as an act of love for the requesting couple — who may never even have met the surrogate beforehand, having been brought together only through one of the many agencies that operate in this field. It is enough to recall one of the cornerstones of Western moral values, the categorical imperative formulated by Immanuel Kant in its second version: “act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means.”
As for the so-called altruistic hypothesis of gestation for others, it is not hard to see, even through simple rational reasoning, that this scenario does not really exist in practice (except in the textbook case of a woman who gives a child to her infertile sister as an act of sisterly love), and that behind the façade of a supposedly free-of-charge contract there would instead lie generous reimbursements or disguised and hidden forms of remuneration and compensation, which in fact conceal the true synallagmatic nature [https://tinyurl.com/3mk98934] of the contractual arrangements, so as to circumvent any bans on paid gestation for others.» [Giuseppe Marra, Magistrate, https://tinyurl.com/bdf3y3kz]
N.B.: A curious position
Articles in San Marino’s newspapers have raised the following questions: «The questions on the table are those that emerged in Committee, and they are far from trivial: is criminal law the right tool for an ethical issue over which Europe itself is divided? Can a crime committed where it is not actually a crime truly be ascertained and prosecuted? And does a rule designed to protect the dignity of women and minors risk, in its current form, treating the trade in bodies and a donation between consenting adults in the same way?» [Insider.sm]
While some answers have already been offered in the reflections above, it is curious to note that, in the debate over abortion, the fact that some San Marino women travelled to Italy to undergo a procedure that is a crime in the Republic was considered serious enough to call for the decriminalisation of that same offence at home; yet now, when it comes to surrogate motherhood — which, incidentally, has recently been made a universal crime in Italy too — it is instead argued that it can legitimately be obtained in countries where it is permitted, even though it is considered a crime in the Republic. Is this not a case of double standards?
Further reading:
- Maternità surrogata, gestazione per altri, utero in affitto. Riflessioni bioetiche e biogiuridiche (edited by Elisabetta de Septis. Contributions by: Ermanno Barucco, Elena Ramilli, Elisabetta de Septis, Luisa De Renzis, Giulia Bovassi) [https://tinyurl.com/jd38fk55]
- L-JUS, SEMI-ANNUAL JOURNAL OF THE ROSARIO LIVATINO STUDY CENTRE — Issue 1-2024 of the legal journal L-JUS, entirely devoted to the topic of surrogate motherhood [https://tinyurl.com/3zwkbn2e]
Don Gabriele Mangiarotti
