Riproduzione e Costituzione. Verso il superamento di un modello tradizionale di famiglia. Una riflessione sulla maternità e sulla paternità

This thesis focuses on the constitutional dimension of reproduction, grounding it in two dimensions: self-determination, on the one hand, and the idea of “collective care,” on the other. Specifically, the proposal is to break down the concept of reproduction into two, so to speak, sub-categories: reproduction in the strict sense—that is, the dimension concerning bodies and the reproductive process—and that of care, along with all the activities it entails. With the awareness that no reproductive process exists independently of care activities, these dimensions are brought together under the broader umbrella of reproduction. At the same time, the notions of “negative” and “positive” reproduction are introduced. These are not meant to reflect the classic dichotomy between negative freedoms (from the State) and positive freedoms (within the State), since so-called “new” rights—and certainly reproductive rights—do not lend themselves easily to such classification. Rather, the use of the adjectives negative and positive aims to highlight the direction of the will underlying reproduction, particularly with reference to women and their choice to become mothers (and everything that follows from it) or their choice not to do so. Fathers, by contrast, are attributed only a positive form of will, though one that must encompass care (understood both as a duty and as a right). In summary, the proposed approach places the subject and their dignity at the center of reproductive self-determination, even though scholarly debate remains open as to whether this dignity should be understood in an objective or subjective sense. What can be stated with certainty, however, is that reproductive self-determination undoubtedly has a natural boundary, represented by the relational context in which the subject is embedded (a subject who is “sexed, embodied, and situated,” B. Pezzini, La costruzione del genere. Norme e regole, 2012). The reproductive dimension, therefore, is grounded in a deconstruction of existing power relations and reinterprets, through the lens of care ethics, the individual within the relationships they inhabit and upon which they are (inter)dependent. In this sense, the transformative potential of care can be subsumed—among other things—within certain legal institutions, in terms of deconstructing gender and re-signifying the subject (here understood within the family dimension). In this regard, reference is made to the reflections of Ruth Rubio Marín (Global Gender Constitutionalism and Women's Citizenship. A Struggle for Transformative Inclusion, 2022), who identifies the articulation of a positive right to care (“the right to care and be taken care of”) as a key step toward such structural transformation. From this perspective, the thesis compares two legal systems (Spain and Italy) which, although belonging to the same legal tradition (characterized, from a gender perspective, by a maternalistic and accommodationist approach), have followed increasingly divergent paths. In this respect, it is undeniable that Spain has made significant progress—especially over the past fifteen years—toward achieving a truly effective egalitarian democracy, emerging as a pioneering experience, at times at the European level and at others globally. Beginning with the recognition of same-sex marriage, Spain has embarked on a path of increasing attention to gender policies, reflected in a steady succession of legislative measures which, since the early 2000s, have systematically and coherently promoted feminist issues. From Organic Law No. 3/2007 (implementing a mandate of substantive and effective equality), to Organic Law No. 1/2004 (combating gender-based violence), to Law No. 39/2006 (on persons in situations of dependency), and to legislation on reproductive health (Organic Law No. 2/2010, later amended in 2023; Organic Law No. 10/2022 on the protection of sexual freedom; and Law No. 15/2022 on non-discrimination), Spain has progressively dismantled the patriarchal foundations of the State. Of course, the goal has not yet been fully achieved. To give just a few examples, the Constitutional Court—despite important limitations in adopting a gender perspective—has always played a fundamental role in providing an evolving interpretation of the constitutional text, yet it has never had a fully gender-balanced composition (only recently has this goal nearly been reached, with five women judges out of twelve). Furthermore, the Spanish Constitution still contains one of the clearest examples of gender discrimination: the preference for the male line in the succession to the Crown. After all, it is a text rooted in a long patriarchal tradition, drafted by seven men. Nevertheless, the legislative effort in this direction is undeniable, supported—albeit not strongly driven—by the intervention of the Spanish Constitutional Court. In Italy, by contrast, the legislature appears never to have wanted (or perhaps been able, given the strong governmental instability that makes comprehensive reforms particularly difficult) to challenge the heteronormative model of the family (and thus the corresponding patriarchal model of the State based on the sexual contract). On the contrary, wherever possible, it has explicitly reinforced it. In this vein, for example, in 2004 (Law No. 40), the Italian legislature regulated medically assisted reproduction (it should be noted that the Spanish law dates back to 1988) through one of the most heavily criticized statutes in legal scholarship, which has indeed been repeatedly subject to annulment proceedings by the Constitutional Court. Consistently, the legislature has never explicitly recognized any reproductive right—not even the right to abortion, which, although regulated since 1978 (Law No. 194), remains to this day merely an agere licere, often hindered in practice by the extensive use of conscientious objection by healthcare personnel. Among other examples, it is also worth mentioning paternity leave, which, although representing an important development in the Italian context (introduced in 2022 into the consolidated text on maternity and paternity), currently lasts only ten days (as opposed to the full equalization of parental leave in Spain). Moreover, the Constitutional Court had to intervene very recently (Judgment No. 65/2025) to clarify that Article 27-bis, which introduces leave for the “father,” must also be extended to the “intended mother”—a category not considered by the Italian legislature, consistently with the fact that same-sex marriage is not recognized in Italy and adoption by same-sex couples remains exceptional, at least from the legislature’s perspective, often justified by the genetic link between the child and one member of the couple. The lack of recognition of a right to care is compounded by the ineffectiveness of the legislative approach to violence against women, which is based primarily on punishment rather than prevention and education (as exemplified by the so-called “Codice Rosso” and “Nuovo Codice Rosso”). Thus, although both legal systems examined originate from the same (patriarchal) constitutional tradition, Spain has been able to implement a process of deconstruction of the sexual contract underlying the modern constitutional model, more incisively questioning the naturalization of gender roles and hierarchies based on sexual difference. The next step should be to move beyond “old” (twentieth-century) constitutionalism by reforming the Constitution so as to incorporate expressions of new achievements in freedom and equality (in genuinely egalitarian terms), explicitly addressing fundamental issues necessary to dismantle the original patriarchal gender order. These include an explicit commitment to parity democracy, the urgency of addressing gender-based violence—including within the family—the recognition of sexual and reproductive rights, and the need to ensure a fair distribution of care work within the private sphere. Only in this way can adequate space finally be given to the “Unexpected Subject,” an expression used by Carla Lonzi (Sputiamo su Hegel. La donna clitoridea e la donna vaginale e altri scritti, 1970) to describe women from the perspective of the State, and which today could perhaps be extended to any person—man or woman—who, despite bodily differences, does not identify with the construction of a heteronomously imposed norm (such as gender) translated into law. Reinterpreting Lonzi today, one might even argue that what is “unexpected” is the Subject itself, in its desire to escape categorization or normative imposition of what we call gender, beyond a patriarchal model of society and a sexual contract that confines the sexes to a biological destiny.