Who is the mother? – a comparative analysis of the normative regulation of transgender reproduction and fertility preservation in Denmark and Sweden

TY - CONF

T1 - Who is the mother? – a comparative analysis of the normative regulation of transgender reproduction and fertility preservation in Denmark and Sweden

AU - Bach, Anna Sofie

AU - Herrmann, Janne Rothmar

PY - 2019

Y1 - 2019

N2 - In respectively 2013 and 2014, Sweden and Denmark abolished the castration requirement that had been in place for several decades in order to obtain legal gender recognition. Historically, Denmark and Sweden have often been positioned as progressive in terms of offering trans healthcare within the public healthcare system. Yet, the Scandinavian welfare regimes have also been criticized for monopolizing access to hormones and surgeries in addition to having rather brutal histories of eugenic population management involving forced sterilization programs. Effectively, the castration requirement meant that to legally transition, transgender individuals have had to refrain from having (more) genetically related children. Drawing on an interdisciplinary framework combining cultural analysis with legal dogmatic method, this paper conducts a comparative analysis of how the reproductive citizenship of transgender individuals has been addressed and imagined in the preparatory work and parliamentary debates that lead to the removal of the castration requirement in respectively Denmark and Sweden. As we delineate the effects of the amendment, especially of the following adaptions of the laws on assisted reproduction and fertility preservation, we highlight the processes that de- and regender gametes and parental categories. The paper shows how normative understandings of proper gendered relationships between gametes, bodies and parental categories are persistent, yet mutable over time. First, we demonstrate how the Roman-Law principle of mater semper certa est (motherhood is established through giving birth) is central to family law in both countries, but also how it has been challenged to allow for a more flexible and inclusive framework. Secondly, we show how the restriction of surrogacy in both countries in combination with gendered imaginaries of sperm and eggs inform the organization of fertility preservation options, especially in Denmark. Through the comparison of Denmark and Sweden, the paper concludes with a discussion of the extent to which reproductive citizenship is upheld and protected in the updated legal regulations.

AB - In respectively 2013 and 2014, Sweden and Denmark abolished the castration requirement that had been in place for several decades in order to obtain legal gender recognition. Historically, Denmark and Sweden have often been positioned as progressive in terms of offering trans healthcare within the public healthcare system. Yet, the Scandinavian welfare regimes have also been criticized for monopolizing access to hormones and surgeries in addition to having rather brutal histories of eugenic population management involving forced sterilization programs. Effectively, the castration requirement meant that to legally transition, transgender individuals have had to refrain from having (more) genetically related children. Drawing on an interdisciplinary framework combining cultural analysis with legal dogmatic method, this paper conducts a comparative analysis of how the reproductive citizenship of transgender individuals has been addressed and imagined in the preparatory work and parliamentary debates that lead to the removal of the castration requirement in respectively Denmark and Sweden. As we delineate the effects of the amendment, especially of the following adaptions of the laws on assisted reproduction and fertility preservation, we highlight the processes that de- and regender gametes and parental categories. The paper shows how normative understandings of proper gendered relationships between gametes, bodies and parental categories are persistent, yet mutable over time. First, we demonstrate how the Roman-Law principle of mater semper certa est (motherhood is established through giving birth) is central to family law in both countries, but also how it has been challenged to allow for a more flexible and inclusive framework. Secondly, we show how the restriction of surrogacy in both countries in combination with gendered imaginaries of sperm and eggs inform the organization of fertility preservation options, especially in Denmark. Through the comparison of Denmark and Sweden, the paper concludes with a discussion of the extent to which reproductive citizenship is upheld and protected in the updated legal regulations.

M3 - Paper

T2 - Trans Pregnancy: Fertility, Reproduction and Body Autonomy

Y2 - 14 January 2020 through 16 January 2020

ER -