La gestazione per altri. Persistenti criticità e prospettive di regolamentazione in chiave comparatistica

Abstract

The essay investigates the issue of maternal surrogacy from a comparative perspective, exploring whether and how both judges and legislators can ensure the legal protection of minors born through these procreative methods respecting — at the same time — the dignity of the pregnant women. To this end, the Author will retrace the dialogue between the First Section and United Sections of the Court of Cassazione, and the Italian Constitutional Court, in regulating the parental relation- ship following a maternal surrogacy abroad. After examining the reasons supporting the judicial decisions and detecting their logical incoherences, the study will consider some foreign legal systems (UK, British Columbia, California and Portugal) allowing gestation for others. This comparative analysis will suggest a possible legislative reform of l. 19 february 2004 n. 40 needed to relieve national judges from inconsistently ruling on such ethical issues to fill a legislative void.