Thesis title: La surrogazione di maternità: profili costituzionali e comparati del fenomeno
This research examines surrogacy as an emblematic phenomenon of the transformations affecting contemporary public law, focusing on the relationship between biomedical innovation, individual freedom, and the constraints arising from constitutional principles. The separation between the genetic, gestational, and social dimensions of parenthood calls for a reconsideration of the traditional legal categories of motherhood and filiation, raising fundamental questions concerning the personalist principle, human dignity, and the inalienability of the human body.
Through a comparative analysis of European and non-European legal systems, together with an in-depth examination of national and supranational case law, the study demonstrates that permissive regulatory models do not eliminate the structural concerns associated with economic asymmetries and contractual power imbalances, while prohibitionist systems face significant challenges in relation to the recognition of the legal status of children born abroad through surrogacy. Within this framework, particular attention is devoted to the 2025 Report of the United Nations Special Rapporteur on violence against women and girls, which situates surrogacy within a human rights perspective attentive to risks of exploitation and commodification, thereby reopening the international debate on grounds that extend beyond a purely autonomy-based approach.
The analysis of Italian case law reveals a gradual shift from a predominantly punitive approach to a concrete protection of the child, without, however, endorsing the automatic recognition of intended parenthood. What emerges is a complex balancing exercise between international public policy and the best interests of the child.
The thesis advanced is that surrogacy entails structural tensions that are difficult to reconcile with the relational conception of the person embedded in the Italian and European constitutional order. The protection of children already born cannot result in the neutralisation of the prohibition, but rather requires legal instruments consistent with the fundamental principles of the system.