Regulating Without Prohibiting. Reproductive Justice and the Case of Surrogacy

New reproductive technologies have turned reproduction into a collaborative, medically mediated practice, calling for a reconsideration of reproductive rights beyond the paradigm of state noninterference. This article argues that the enforceability of reproductive rights should be understood as a synthesis of liberty rights and social rights, entailing both negative and positive duties for the state. Building on the correlativity between rights and duties and on relational theories of autonomy, it contends that non-sexual reproduction – surrogacy in particular – should be removed from the sphere of criminal prohibition and framed within models of reproductive justice. From this perspective, the state is called upon to guarantee the material conditions for the exercise of reproductive freedom, while protecting the rights, interests and vulnerabilities of all the parties involved: intended parents, gestational carriers and children.