Reproduction as a Key Gender Issue

Abstract

Abstract: Reproduction allows thinking about the complex relationships between law, gender and equality, assuming the theoretical perspective of a gender analysis oriented by the “principle of gender nonsubordination”, as typically expressed by the Italian Constitution.

The essay moves from considering pregnancy as a complex relational experience between a pregnant mother and an unborn baby, deeply marked by bodily sharing. Given a short critical reference to the neutralization of the subject in modern constitutionalism, it investigates whether and how far complementarity in the sex-gender system has been considered, when addressing the issue of reproduction (and, in particular, surrogacy) and when shaping its legal categories and institutions.

The new principle of “birth mother’s acknowledgement” allows revising critically the judgement n. 272/2017 of the Constitutional Court, which deals with children born by surrogate motherhood abroad and their intended parents, affirming the need to safeguard the recognition of the special and unique role of birth’s mother together with the best interests of the children.

Keywords: constitutional law, principle of gender nonsubordination, surrogacy, principle of birth mother’s acknowledgement.