La riproduzione al centro della questione di genere. Premesse per un inquadramento costituzionalmente orientato dall’analisi di genere della GPA (gravidanza per altri)

The essay aims at analyzing the experience of surrogate motherhood from the point of view of a gender analysis oriented by the “principle of gender non-subordination”, as typically expressed by the Italian Constitution. Gender asymmetry has marked and still marks the whole experience of procreation, as well as its legal shaping. Focusing on different male and female roles, it is necessary to investigate whether and how far complementarity in the sex-gender system has to be considered, when addressing the issue of the experience of a “pregnancy for others” (a “birth mother” gives birth to a baby for a couple of intending parents, either of the same or of different sex). Pregnancy is a complex relational experience between a pregnant mother and an unborn baby, deeply marked by bodily sharing and necessarily unsymmetrical: a this kind of relationship escapes from the criterions by which the law usually considers inter-subjective relationships (assuming subjects, which are entirely separate) and requires new legal categories to be shaped. The essay suggests drawing a distinction between the procreative project (from insemination to birth, via childbearing) and the parental project (from the birth onwards). The first project is a necessary condition of the second, but they do not coincide and the subjects involved may be different: the core of a procreative project is the (woman’s only) relational experience of pregnancy; a parental project implies parental care and responsibilities towards the newborn, which both women and men are able to guarantee. The woman’s competence to build different ties and to assume different responsibilities over the reproductive and the parental projects must be recognized by the means of a legal regulation of surrogacy, while the present complete ban implies the denial of woman’s self-determination. The constitutional principle of gender non-subordination may provide guidance to ensure the dignity and the freedom of choice of a “birth mother”. For the aforementioned reasons, it is necessary to think in terms of a new legal framework able to protect and safeguard the special and unique role of birth’s mother, gathering from the gender non-subordination principle the new principle of “birth’s mother’s acknowledgement”.