Tacit Concepts of Family in Legislation on Assisted Reproduction

Abstract

This article examines the joint corpus of family and health legislation and practices to analyse the notions behind the Danish regulation of assisted reproduction. It introduces an analytical framework, which encompasses a more comprehensive approach and encapsulates the variety of regulatory tools that expressly or implicitly create restrictions on the provision of assisted reproduction. By providing a generally applicable framework for analyses of the de facto regulation to expose possible underlying tacit concepts, this article makes a methodological contribution to enhance the understanding of the intermingling fields of family and reproductive law. The analysis in this article shows that eligibility for receiving infertility care depends on one’s current family constellation and it is not children per se, which are the focal point. Surprisingly neither is the nuclear family. Rather, the consummation of the relationship between a man and a woman through one shared child is at the core of the regulation. Archaic notions of family and gender expectations are thus revealed. The article concludes by discussing how the raison d'être behind the regulation could have been something other than a specific concept of family. In this way, the article invites others to analyse their national regulation of assisted reproduction and to contribute to an international discussion about whom, in the pursuit of family formation through ART treatment, has an underprivileged status.