A critical view on the Italian ban of surrogacy: Constitutional limits and altruistic values

Despite the position of the Joint Divisions of the Italian Court of Cassation, which appears to hold that altruistic surrogacy is prohibited, a different – narrow – interpretation of the Italian ban on surrogacy is still possible. Altruistic surrogacy does not fall within the scope of the ban, according to the reasoning of the Italian constitutional judges in Judgment 9 April 2014 no 162, which declared it unconstitutional to forbid heterologous fertilization. Doubts arise, first, from the broad interpretation of the right to physical and mental health, which the Constitutional Court attributed as a whole to couples and, second, from the inclusion of the right to reproductive freedom as part of the right to self-determination. As a fundamental right, its exercise may be limited only if there is a need to protect rights of the same level, such as to safeguard the dignity and health of the surrogate mother or the well-being of the child.