La interdicción de la mercantilización del cuerpo humano como prius ontológico de la dignidad humana

Abstract

The scope of human dignity, as a constitutional principle and value, represents a debate which is not exempt from controversy in legal dogmatics. An expansive and evolutionary interpretation of its material content necessarily requires the prohibition of the commodification or instrumentalization of the human body and the defense of the Kantian imperative that prevents a human being from being considered a means and not an end in itself. So-called surrogacy, represents a paradigmatic example where the instrumentalization and commodification of pregnant women and minors come together, as well as the historical consideration of women as subaltern beings or means to meet the reproductive expectations of others. This article analyzes the compatibility between the clauses of gestational contracts, their practical implications and dignity as a principle inherent to every human person. And it examines, also, the fundamental rights that the practice could violate in light of the recent jurisprudence of the Supreme Court (STS 277/2022, of March 31) and the Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on the fight against violence against women and domestic violence, of July 13, 2022.