Precisely at a time when the country would seem to need to know through which relevant reforms the Government would be willing to favor a constant path of growth to counter precariousness, low wages, tax burden and high cost of living, politics still seems once giving in to the temptation to resort to propaganda slogans in an attempt to maximize a consensus which, probably, even regardless of the results of the recent administrations, is beginning to show the first signs of giving way.

It is quick, then, to speak of a "universal crime", and it is quick to talk about it with reference to the practices relating to the hypotheses of surrogacy, which, on closer consideration, has already been prohibited in Italy for some time by article 12, paragraph 6, of Law no. 40 of 2004 which, expressly, as unequivocally, condemns the creation, advertising and marketing of gametes or embryos or the surrogacy of motherhood through the imposition of very severe penalties.

Let's be clear: the point is of a purely juridical nature as well as before being political. Above all when considering only the conditions of (in) existence of useful assumptions, as necessary, to pursue the result. And all the more so when other legal systems instead allow the use of surrogacy, effectively making the claim to extend the Italian penal punitive power to other territories a pure and simple utopia. In short: if it is true, as it is true, that even article 7 of our Penal Code contemplates certain criminal hypotheses, bringing them back to a principle of universality, i.e. contemplating their punishability regardless of the place of the committed crime and/or the perpetrator, however , it is equally true, not only that they must be crimes so serious and heinous as to require them to be punished tout court, but also that they are recognized everywhere as such. If this were not the case, how would it be possible to resolve any conflict between competing legislations? How could we claim to impose the punitive power of the Italian State, in other contexts that perhaps do not consider surrogacy equally prosecutable? In other words, Meloni's proposal would like to pursue the objective of punishing the Italian who commits the crime abroad, i.e. in a country where, evidently, resorting to such a practice would be legal. But are we faced with a crime against humanity? Is there even a minimal principle of sharing of the international community in its entirety? How can you expect to sanction behaviors that, by way of example, would appear to be permitted in countries such as Ukraine and Canada?

The question, therefore, would seem to arise on a more simply political level, and will probably be destined to remain in the state of power without ever becoming a practical act given the not only ideological, but above all procedural difficulty inherent in the possibility of making the so-called subrogation of maternity a universal crime, i.e. considered as such even if committed outside the sphere of Italian territorial sovereignty. Meanwhile, because States can only exercise their jurisdiction on the national territory and, only in certain specific cases, i.e. by virtue of particular regulatory provisions, also against citizens who have committed crimes abroad and/or foreigners who, wherever are found, have committed a crime against a citizen of the State.

Therefore, because although the so-called universal jurisdiction exists, and in certain specific cases, recognized erga omnes, it is constantly applied, the same, however, is based on the recognition of the transactional, indeed universal, significance of certain serious crimes. Finally, because only in certain circumstances, all States have the precise legal duty to implement any action useful to ensure that these rules are respected and their eventual violations are equally and consequently prosecuted. In essence, the Meloni Government would like to punish with the penalty provided for and contemplated by Italian legislation, anyone who, in any form, carries out, organizes or advertises the marketing of gametes or surrogacy, even if they do so abroad, without likely to consider, whether or not such conduct is regulated and/or legitimized by foreign law. And without in any way clarifying whether, in any case, the punishment is limited only to Italian citizens.

In other words, the proposal in question would like to represent an exception to the principle of territoriality, as governed by art. 6 of the penal code, according to which, the Italian law is applicable in the territory of the state when an action or an omission has taken place in the same territory. But it would not be just about this: beyond the media use of concepts that would touch the consciences and the depths of every human being, who, in hypotheses such as the one under discussion, should be left free to determine himself, one cannot not consider a further circumstance, which, far from being considered of little importance, would seem to arise, as in fact it arises, even as a preliminary: what definition does the Meloni Government offer of the concept of "surrogate motherhood"? What substantial substance should the type of crime in consideration have?

In reality, beyond the bombastic pronouncement of sanctions, the Meloni proposal would seem to report nothing regarding the consistency of the criminally relevant conduct which, continuing to remain undetermined on a definitional level, makes the hypothesis from origin difficult to prosecute, and, as such, not punishable for not being provided, the specific definition of surrogacy. And again: how can this proposal be reconciled with the principle of double criminality? If it is true, as it is true, that a particular conduct punishable by Italian law would also be punishable abroad, provided that the same is also punished under foreign law, how could the punitive power of Italian law be considered operating in all those countries where gestation for others is constantly practiced, and where it is even often expressly regulated and disciplined by local law? Are there, therefore, the conditions to legitimize, in the specific case, a repressive intervention by the legislator that goes beyond national borders?

Beyond the opinion that everyone may have in relation to resorting to a practice of this kind, one certainly cannot expect to interpret criminal law in a purely ethical key through the reference to universality as a founding value in an ideological context that unanimous, at a transnational level, it does not seem to be.

Giuseppina Di Salvatore – Lawyer, Nuoro

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