Wednesday, February 21, 2024

Italy’s moves to ban surrogacy would make it hard for gay couples to become parents

ERCOLANO, Italy — “Mamma mia!” exclaimed Luca Capuano, feigning surprise as his rotund infant, Paola, slurped another spoonful of her favorite mush, a concoction of rabbit and fennel home-cooked by her other dad, Salvatore Scarpa.

Soon, they hoped, they’d be cooking for more in this kitchen, where Mount Vesuvius looms outside a rear window. The same California-based surrogate who gave birth to Paola last year had agreed to another embryo transplant. The new pregnancy would complete their dream of a family of four.

It could also make them outlaws.

“They don’t consider us a family,” said Capuano, 47, referring to the government of Prime Minister Giorgia Meloni. “They consider us criminals.”

Italy bars same-sex couples from adopting children in most circumstances or accessing fertility treatments. Like many countries in Europe, it also bans the practice of surrogacy within its national borders. That stance has prompted couples like Capuano and Scarpa, 30, to arrange to have children using surrogates abroad — often in the United States, with its comparatively liberal policies.

But now, under Italy’s most right-wing leadership since World War II, the government is targeting international surrogacy, as part of what LGBTQ+ activists decry as a war on same-sex parenthood.

(Video: The Washington Post)

A Meloni government edict last year forbade local mayors to register birth certificates that list parents of the same sex. That means 7-month-old Paola — so cherished that her umbilical cord, dipped in gold, is framed on a wall in her family’s apartment — technically remains a legal orphan, with no recognized parents or citizen rights in Italy.

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The government is also moving to make the use of overseas surrogacy a crime. An extraordinary measure would impose up to two years in prison and a fine equal to $1.1 million on Italians who return with children born through surrogates abroad. The proposal was approved by the lower house last July, and a vote in the Senate — also controlled by Meloni’s conservatives — is expected in the coming months.

If passed, the legislation would close the last path to parenthood for same-sex couples like Capuano and Scarpa.

“For us, it’s our only option,” Scarpa said.

Meloni’s campaign against surrogacy

Last month, Estonia became the 20th country in Europe to legalize gay marriage and grant same-sex couples equal parental rights. A vote in Greece is set for this month. But just as in the United States — where more than 75 anti-LGBTQ+ laws were passed by states last year — the march toward equality in has triggered a populist backlash.

“When we look at the legal advances, the trend is still going forward,” said Katrin Hugendubel, advocacy director for ILGA-Europe, a gay rights advocacy group. But, she added, “across Europe what we are seeing is a backsliding in the sense that some governments have turned to the right and are following a very conservative agenda.”

Meloni, 47, is the star of that new generation of conservative leaders, providing a novel model of far-right governance. She has distanced herself from her party’s neo-fascist roots, largely avoided the sort of autocratic projects undertaken by other European populists, and endeared herself in Washington and Brussels with a tough stance on Russia and strong support for Ukraine. She has also promoted classically far-right positions on immigration, national identity and “traditional families.”

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Meloni is opposed to elevating same-sex civil unions, approved in 2016, to the status of marriage, which would, theoretically, open the door to adoption by same-sex couples.

“We live at a time when everything we appreciated is under attack,” Meloni — a single mother who never married the father of her child and split with him last year — told a demographic conference in Budapest in September. “That’s dangerous for our national, religious, family-related identity.”

Nothing has illustrated her stance more than her longtime crusade against surrogacy.

Meloni’s Brothers of Italy party was ordered to pay damages last year to a same-sex couple for appropriating, in an earlier anti-surrogacy campaign, a photo of them weeping over their newborn son. “He will never be able to say Mamma,” said the ad. “The child’s rights must be defended.”

Eugenia Maria Roccella, Meloni’s minister for the family, insisted that “the problem is absolutely not the sexual orientation of people.”

“Our aim,” she said, “is to prevent the exploitation of women’s bodies.”

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That’s a fairly common line in Europe, where many countries are uncomfortable with surrogacy as a commercial transaction. Pope Francis — who appeared with Meloni at an event last spring promoting a higher Italian birthrate — called last month for a universal ban on surrogacy, citing “the exploitation of situations of the mother’s material needs.”

But legal experts say criminalization of seeking out surrogates in other countries would go further than any existing policies in the European Union.

Roccella acknowledged that an Italian ban on international surrogacy would have a disproportionate impact on same-sex couples.

Only 10 percent of Italian foreign-surrogacy clients are in same-sex relationships. But heterosexual couples who use surrogates abroad would be unlikely to raise red flags when returning home, since they would be able to show birth certificates listing parents of opposite sexes. For them, the law could serve more “as a deterrent,” Roccella said.

She added that she knows same-sex couples who are “great parents” but that parenthood isn’t everyone’s “right.”

When the government wrote to mayors last year, Roccella said, it was simply advising them of a court decision against two fathers who sought to register their child’s birth certificate with both their names. Legal scholars, however, argue that the concept of legal precedent is less encompassing in Italy than in the United States. If the government had not issued its notice to mayors, they say, cities and towns could have continued registering children with same-sex parents.

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“A child cannot have two parents of the same sex; this is the ideological premise of our government,” said Angelo Schillaci, a law professor at the Sapienza University of Rome.

In one pending case, a state prosecutor in Padua is moving to invalidate 33 birth certificates, going back to 2017, that identify pairs of mothers.

One of those mothers is Irene Amoruso, 38, who shares two children with a female partner. If she loses her appeal, her name would be struck from the birth certificate of the daughter for whom she is not a biological mother. Even the girl’s last name — a compound of the two mothers’ surnames — would need to be changed to just that of her birth mother.

Reinstatement of rights would depend on a long and costly process of “stepchild adoption.”

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“Technically, I would no longer be the legal parent, I would no longer have any kind of connection to her,” Amoruso said. “Essentially, I wouldn’t be able to pick her up from school, take her to the pediatrician, travel alone with her abroad — they’d tell me I was kidnapping a minor.”

An Italy-U.S. surrogacy story

“Good morning!” chirped Capuano to the image on FaceTime. Outside, the sun had set over the Gulf of Naples. Six thousand five hundred miles away in suburban Southern California, Ashley May, their 38-year-old surrogate, had just gotten back from her morning workout. When her own two young kids bounded into view, they leaned toward the phone to say hello to “Sal and Luca.”

May works in medical administration; her husband, in construction management. She says she started considering surrogacy after following the Instagram posts of a high school friend who had been a surrogate. “I just felt like if I could give somebody that gift, it would be amazing,” May said.

Her connection with Capuano and Scarpa was “instantaneous,” she said. “You can be in the worst mood and they just lift your spirits.”

Paola was the first baby she carried as a surrogate, and she initially wasn’t sure she’d do another. Then one night late last year, she and her husband talked about how, if she were to do it again, it should be for Capuano and Scarpa. The next day, she said, the fertility clinic called. The Italian couple was hoping for a second child. May said she began crying. It felt, she said, “meant to be.”

“It kind of breaks my heart … the hoops and challenges that they are faced with on the daily,” she said. “Why not allow them to be the amazing parents that they are intended to be?”

The Italian couple had known that having children would be challenging.

(Video: The Washington Post)

Capuano, a financial lawyer, came from a generation in which openly gay men felt parenthood was beyond their reach and merit. But Scarpa, from a younger generation unwilling to accept limitations, had nudged him to an understanding.

“That we deserved a family,” Scarpa said.

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After legal obstacles effectively ruled out international adoption, they committed to surrogacy — at an investment of $150,000. They also made a firm decision. Both men would give sperm to the California fertility clinic, and neither would know the identity of Paola’s biological father.

They were in a Southern California Airbnb, trying to coax 5-day-old Paola to sleep, when their smartphones lit up with the news of the vote in Italy’s lower house to criminalize the use of international surrogacy.

“Disgusting,” Capuano recalled uttering as he paced. Scarpa was in tears. It tainted what, with Paola’s birth, had been the happiest days of their lives.

There would be more disappointments upon their return to Italy. Their mayor, Ciro Buonajuto, had assured them he would try to legalize their infant, despite the new government edict on birth certificates. But neither he nor four other mayors could find a way to help.

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“Regardless of one might think about surrogacy, right now in my city, in the town of Ercolano, there’s a holy soul called Paola — why shouldn’t she get an ID?” Buonajuto said.

Eventually, a kindly bureaucrat at the national tax office issued Paola an Italian health card, enabling her to receive vaccinations. But unregistered as an Italian citizen, she is not entitled to public school, or future rights to work or receive a pension. Legally, she is an American tourist who has overstayed.

There would be one complicated, costly and demoralizing way forward. With DNA tests, Capuano and Scarpa could determine which of them is her biological father. She could then be registered as the daughter of a single father, while the other pursues stepparent rights in the courts.

If the surrogacy legislation passes, as analysts think it will, the situation would be even bleaker for the second child Capuano and Scarpa hope to have.

They say they are prepared to give up on Italy before giving up on their aspirations for a family. They scan real estate websites in France and the United States.

Their departure would be agonizing for Paola’s doting grandparents, who live in a downstairs apartment in the family’s gated compound near the ruins of Pompeii.

But if it comes to that, “I shall bless them and tell them, ‘Go. Go where you’re welcome,’” said Luca’s father, Franco Capuano, 79. “Go where there’s progress. Go where your rights are recognized, and do not think back on us.”

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