Statement by Emmanuele Di Leo, President of Steadfast Onlus, with reference to the story of tens of babies born from surrogate mothers under the management of the company “BioTexCom” and hosted in an improvised nursery at the Hotel Venice in Kiev, Ukraine.
“In recent months what is happening in Kiev regarding surrogacy has had great prominence on the pages of many Italian and European newspapers. Children commissioned by citizens who come from different countries and who, due to the COVID-19 emergency lockdown, have not been delivered to their buyers, among which unfortunately there are also customers of Italian nationality.
As we know the law n. 40/2004 expressly prohibits the use, in Italy, of the technique of surrogacy and provides as penalty (art. 12 paragraph 6) a charge of “imprisonment from three months to two years and a fine from 600,000 to one million euros”. So here we are today with Italian citizens who, consciously or not, violate the law and commit a very serious crime; however through a trick it is possible to bypass these rules: it is done so that the surrogate mother, through a notarial act, renounces to recognise the baby carried in her womb, who is thus recognised as the son of the client couple.
From this legal expedient two issues of particular relevance arise: although the commissioning parents would be subject to criminal charges according to the rules relating to the false attestation or declaration to a public official on identity and alteration of state (art.12 of law 40 / 2004 and Articles 495 and 567 of the Criminal Code), a fact which would at least presuppose a report to the Italian judicial authority by officials of the consulate or embassy on the spot, the jurisprudence is however oriented towards the non-applicability of the sanction of art.12 of law 40/2004.
This is because the incident occurred in a foreign country where the practice of surrogacy is lawful and therefore a jurisprudential contrast emerges which excludes the reproach of the conduct because of the uncertainty.
At the same way, if the birth registration has taken place in compliance with the laws of the country of birth of the child (Lex loci), neither the alteration of state nor the false attestation to the public official can exist. So made the law, found the loophole.
On the other hand, regarding the transcribability or not in the Italian civil status registers of the birth certificate formed abroad which recognizes the clients of the surrogacy as parents, a wide debate is still underway by the Cassation: initially it expressed in 2016 considering such acts transcribable, but subsequently, at United Sections, overturned this decision affirming the non-transcribability of the birth certificate and highlighting that in our legal system the ban on surrogacy is elevated to the rank of principle of public order, placed to protect dignity of the pregnant woman. On this occasion, the Court of Cassation also recognized the principle of the Italian system in terms of filiation and dignity of the person compared to those of other foreign systems that contrast with them.
Contrary to what is claimed by the supporters of surrogacy, it is evident that it is precisely this practice to be harmful to human dignity, including that of minors, who have first of all the right not to be treated as objects. In the surrogate motherhood in fact, minors are always “subject of a contract”, considered as a mere tool for the fulfillment of the desires of people who want to satisfy their desire for parenthood.
It is now clear how much currently the tools provided by our legislation to fight surrogacy are completely ineffective and inadequate as the judges themselves question their own applicability.
Thanks to this unworthy practice of surrogacy, violations of fundamental rights are made every day to children, who find themselves to be mere commercial objects, sold and stored to satisfy a selfish desire of parenthood. Every day thanks to this practice, many women are victims of a silent trafficking that, leveraging on indigence, exploits the female body reducing it to a mere container capable of developing a crude market on human skin”.