Putting women and children first

In 2020, a Ukrainian woman gave birth to an Italian baby. Serenella, the name used to protect the child’s identity, was the result of a lucrative international commercial surrogacy contract. Her biological Italian parents relied on modern reproductive technology to create embryos and paid the Ukrainian woman for the use of her womb. Sadly, Serenella’s parents never came to get their infant, and she went from nanny to orphanage while Italian authorities tried to locate them.

This heartbreaking story of child abandonment underscores many of the problems with commercial surrogacy. It is one of the main reasons that Italian lawmakers recently voted to make surrogacy illegal for citizens of their country. Domestic surrogacy has been illegal since 2004, but Italy’s latest “surrogacy tourism” law goes so far as to prohibit citizens—under threat of fine or jail—from contracting with a surrogate in another country. If you’re an Italian citizen, neither domestic nor international surrogacy is a legal option.

Major news outlets were quick to criticize Italy’s decision because it targeted male same-sex couples or infertile heterosexual couples who are otherwise unable to have a biological child. These criticisms focus on the desires of the intended parents at the expense of the surrogate mothers and surrogate-born children. When the psychological and physical well-being of the child or woman does arise, proponents tend to rely on weak longitudinal studies or overlook compromising results in favor of an individual’s positive experiences.

Italy’s decision to prohibit all forms of surrogacy reflects a clear-eyed view of the industry, especially as it relates to international surrogacy tourism. In January, Pope Francis’ condemnation of surrogate motherhood bolstered Italy’s efforts. Reflecting the sentiments of many international and state laws, the pontiff said that he “deem[ed] deplorable the practice of so-called surrogate motherhood, which represents a grave violation of the dignity of the woman and the child, based on the exploitation of situations of the mother’s material needs. A child is always a gift and never the basis of a commercial contract.”

Only a few months later, the European Parliament voted to include “the exploitation of surrogate motherhood” under acts of “human trafficking.” As it happens, in 1988, the New Jersey Supreme Court invalidated the first surrogacy agreement brought before it. “While we recognize the depth of the yearning of infertile couples to have their own children, we find the payment of money to a ‘surrogate’ mother illegal, perhaps criminal, and potentially degrading to women,” the court concluded in the infamous “Baby M” case. Despite this initial ruling, the United States boasts some of the most permissive surrogacy laws in the world. No federal law regulates surrogacy, and state laws vary such that anyone can create a child through surrogacy with no background checks or safeguards in place.

Unlike the United States and war-torn Ukraine, commercial surrogacy is prohibited in most developed nations, including Australia, Brazil, Cambodia, Canada, China, Denmark, France, Germany, Iceland, Italy, New Zealand, Portugal, Spain, Taiwan, Thailand, and the United Kingdom, to name a few. Each country recognizes how exploitative and counterproductive surrogacy is despite the potential for economic gain. When India outlawed most forms of commercial surrogacy, for example, it forewent a $2.5 billion market.

While surrogacy poses many moral problems, three primary arguments underlie Italy’s decision.

First, surrogacy contracts exploit the financial needs of poor and vulnerable women. In the United States, for example, a surrogate may receive anywhere from $25,000 to $75,000. While many claim that such women are primarily motivated by altruism, the anecdotal data suggests otherwise. Indeed, while altruistic surrogacy was already legal in New York, state Sen. Brad Hoylman claimed that he and his male partner were unable to find a woman willing to bear their children without the financial incentive. His efforts ensured New York legalized commercial surrogacy in 2021.

Moreover, many proponents of surrogacy argue that the practice is akin to adoption, an act of charity that is widely championed by Christians. Yet this argument overlooks two key differences. First, surrogacy involves the intentional creation of children who will be severed from their birth mothers and, at times, their biological mothers (egg donors) to fulfill another adult’s desire for parenthood. Second, strict adoption laws ensure that no parent pays a woman for her child. In surrogacy, this lucrative payment is the basis of the agreement. Indeed, the only difference between a legitimate surrogacy contract and baby selling is the timing of the contract.

Finally, surrogacy agreements violate the exclusive union of a man and a woman in marriage by introducing a third person into the “package deal” of marriage, sex, and procreation. We may rightly cringe at Abraham’s use of Hagar to conceive a child, and yet modern surrogacy practices merely offer a high-tech form of Biblical concubinage.

The desire for a child is one of the strongest, and most natural, feeling for humans to experience. Still, such desires must not be placed before the well-being of women and children. Italy’s pro-family law protects the maternal bond and ensures that children are not the result of a commercial contract.