Earlier this month, President of the Republic Sergio Mattarella signed off on Italy’s newly amended surrogacy ban; the law will come into effect today. What does this actually mean? And perhaps even more importantly: what does the backlash to Italy’s ban reveal about our attitude towards children?

First, let’s get the facts right. Despite the sensational-sounding term “reato universale” (“universal crime”), all Italy has done is to amend an existing law, which has been in place since 2004, that already prohibited both altruistic and commercial surrogacy. That law in turn followed on from the 1997 Oviedo Convention, signed by thirty EU countries, which states in Article 21 that “The human body and its parts shall not, as such, give rise to financial gain”, meaning that commercial surrogacy is illegal throughout the European Union, though some countries allow so-called “altruistic” forms of it. The recent expansion of the ban by Meloni follows the Oviedo Convention to its logical conclusion: by making surrogacy a universal crime, citizens who hire a surrogate mother abroad (most often Canada or the US) can now be prosecuted once they bring the child back to Italy. The penalty ranges from six months to two years’ imprisonment, as well as fines between 600,000 and one million euros. 

British outlets have been quick to brandish the law as a new manifestation of Giorgia Meloni’s populist “family values” propaganda, emphasising the difficulties this will pose for LGBT couples. But the story is not so simple. For example, those very same outlets have correctly reported that most couples seeking surrogacy are heterosexual, meaning that the law does not, in fact, target or disproportionately affect same sex couples. 

Within Italy, there’s also been a backlash. The bill passed 84 to 58, and many of the opposing senators have been vocal in their condemnation, with arguments against it falling roughly into two camps. First, there is the liberal feminist argument: women should be allowed the choice to do as they wish with their bodies; consent is everything within this ethical framework. For instance, Il Fatto Quotidiano has reported Democratic senator Susanna Camusso as saying that “The right thinks that women are fragile beings who can’t decide for themselves. Instead, women are capable of knowing what is and what isn’t exploitation”. 

Then, there is the argument that the law is not proportionate to the crime. Senator Filippo Sensi criticized the “legislative rage” behind the law, which he believes is incompatible with the Christian message of love. Similarly, senator Ilaria Cucchi thinks that naming surrogacy as a universal crime unjustly likens it to other universal “crimes of particular severity” such as “genocide, torture, prostitution of minors, slavery” and laments that current surrogate children living in Italy will be subjected to stigmatisation. 

Both of those positions are deeply flawed. The argument about the restriction on women’s freedom is easily countered. The idea that a woman’s bodily autonomy is respected so long as she gives consent — that women “know what exploitation is”, as senator Camusso has it — is at best naïve, at worst irresponsible. Similarly to arguments in favour of legalising pornography or prostitution, consent acts as an ethical catch-all, often leaving women unable to articulate the ways in which they have, in fact, been exploited. Especially in cases of commercial surrogacy, there are often financial pressures placed on the gestational mother that play a significant role in her decision to act as a surrogate. Can a woman really be said to have “chosen” to be a surrogate if she already has children of her own, and is being offered tens of thousands of dollars to stay at home and gestate a baby, rather than working a minimum wage job? 

Such concerns about covert exploitation have united unlikely bedfellows. In Italy, socially conservative nonprofit Pro Vita e Famiglia told the Catholic newspaper Avvenire that they estimate the international surrogacy market to be valued at 15 billion dollars, and that it’s only set to rise in the next decade. Across the channel in the UK, gender-critical feminist charity FiLiA has also condemned surrogacy, not only on the grounds that it’s exploitative, but also because of the physical and emotional damage caused by induced pregnancy in surrogate women, regardless of the fact that they may have technically given their consent, even in cases of “altruistic” surrogacy.

When it comes to surrogacy’s impact on children, it becomes more complicated. Concerns about stigmatisation reveal a superficial sort of interest in children’s wellbeing, but one that still takes for granted that the adult’s happiness trumps the child’s needs. In debates around the surrogacy ban, both in Italy and elsewhere, not enough attention has been paid to the long-term effects of surrogacy on the children involved. Having biological children should not be seen as a fundamental right, which an adult can claim at the expense of the child’s physical and psychological wellbeing. Instead, children should have a right to be brought up by their biological parents, and especially to experience being looked after, from birth, by the woman who gestated them and whom the newborn baby recognises as safe. 

As children’s rights advocate Katy Faust argues repeatedly in her book Them Before Us: Why We Need a Global Children’s Rights Movement, it’s up to adults to make sacrifices for the sake of children, not the other way round. This doesn’t have to mean a lack of compassion for infertile couples. Theirs is a heavy cross to bear. But we can acknowledge their plight while simultaneously recognising that we have a duty to place our own needs and desires second to those of more vulnerable members of our society, of which small children are arguably the most vulnerable group. 

I, for one, am glad that my home country of Italy has tightened its grip on surrogacy. Even so, our focus when talking about surrogacy still needs to change. From the Victorians we have inherited a long literary tradition of stories about orphaned children. Charles Dickens’ Oliver Twist, Anne Shirley in L. M. Montgomery’s beloved Anne of Green Gables series, and, more recently, the Harry Potter books — for a long time, we have told stories from the point of view of orphaned children about the evil of being separated from one’s birth parents, especially the birth mother. An orphan finding a sense of belonging in a new adoptive family was seen as the best solution to the tragedy of separation. In those stories, the child is the protagonist. The people who adopt the child into their family out of the charity of their hearts, as admirable as they may be, are very much supporting characters.

Italy’s decision to criminalise surrogacy sought abroad, as harsh as some may find it, is a step in the right direction

Now, the narrative has flipped. We (justly) talk about the effects of surrogacy on surrogate mothers, and we talk about the impact which removing the option of surrogacy has on infertile couples. But what about the children? Why do we highlight the plight of childless parents, but forget the untold stories of children who will grow up questioning their biological identity, and knowing that their parents intentionally separated them from their gestational mother? In short, why have adults become the protagonists — even the heroes and heroines — with children relegated to shadowy figures, instruments in the quest for the parents’ self-fulfilment? 

Until we make children the protagonists in our narratives about the family, we cannot say that our society is either pro-family or pro-children. Italy’s decision to criminalise surrogacy sought abroad, as harsh as some may find it, is a step in the right direction.