Legal Regulation of Genital
Surgery on Intersex Children
Aileen Kennedy
Background
• What is Intersex?
Umbrella term to describe a range of biological variations from bi-morphic
male/female
Intersex people have biological sex characteristics that are not exclusively
male or female.
• Chromosomes
• Gonads
• Genitals
• Internal sex structures
• Hormones
Difficult to estimate how many people are intersex
4 - 0.5% - probably as common as red hair.
Medical Management
• late 19th Century - Medical expertise needed to determine ‘true sex’
• late 20th Century –
– assign sex and shape the body to conform to that assignment
– Optimal Gender Theory
Medical Management
• 2006 Consensus Statement
– clitoral reduction only in cases of ‘sever virilisation’
– decisions on surgery should take into account the chances of
fertility.
• 2013 Victorian Department of Health ‘decision-making
principles’ endorses the consensus statement
– ‘in 2011, Victorian hospitals reported seeing approximately 40
new cases of infants with identified intersex conditions per year,
and involvement in follow up and monitoring for 240 patients
into childhood and adolescent.’
• The Age, 20 June 2013
– Royal Children’s Hospital in Melbourne performs 10 to 15 genital
reconstruction operations a year, often on girls under the age of
two
Legal Regulation
• Parents can consent to surgery on young children
• Two limitations on parental authority
1. Must be in the child’s best interest
2. Special Medical Treatment (Marion’s Case)
•
•
•
•
Non-therapeutic
Major, Invasive and Irreversible
Significant risk of making wrong decision
Grave and serious consequences of wrong decision
•
•
Ethically sensitive
Disputed
Legal Regulation
Applications for Special Medical Treatment on intersex children
–
–
–
–
Re
Re
Re
Re
A – 1993
Lesley – 2008
Sean and Russell – 2010
Sally – 2010
• No application to authorise genital normalising surgery.
• All applications to perform gonadectomy
• Authority sought because procedures would effectively sterilise
children
• Re A – Justice Mushin quotes surgeon’s report where a history is
given of ‘genital reconstruction to give her [sic] a feminine
appearance’
Special Medical Treatment
• ‘therapeutic’
• The characterisation of a treatment as therapeutic
or non-therapeutic is a medical decision that is the
responsibility of the patient’s treating clinician, in
collaboration with the multidisciplinary medical,
ethical and legal experts assisting with the
development of the management plan.
Victorian Health Department Decision-making Principles
Special Medical Treatment
• Treatments where the medical imperative for intervention is
not obvious include those performed to protect against
psychosocial stress associated with “looking different” and
being known by others to look different.
• Minimise psycho-social risk to a child.
– Risk of social or cultural disadvantage to the child, for example,
reduced opportunities for marriage or intimate relationships, or
reduced opportunity for meaningful employment and capacity to
earn an income
– Risk of social isolation, restrictions or difficulties, for example,
caused by embarrassment or social stigma associated with
having genitalia that does not match the gender in which the
person lives.
Victorian Health Department Decision-making Principles
Special Medical Treatment
• Reducing the risk that the infant will be rejected by
parents, discriminated against or ostracised by
peers and broader society.
Human Rights Commission report on surgery on intersex infants
• to allow the child to develop without the
psychosocial stigma or distress which is associated
with having genitalia incongruous with the sex of
rearing.
Australasian Paediatric Endocrine Group
• Comparable to cosmetic surgery to correct cleft lip
and palate
Associate Professor Grover, RCH, Melbourne
Special Medical Treatment
Swiss National Advisory Commission on Biomedical Ethics 2013
• on ethical and legal grounds, all (non-trivial) sex assignment
treatment decisions which have irreversible consequences but
can be deferred should not be taken until the person to be
treated can decide for him/herself. This includes genital
surgery and the removal of gonads, unless there is an urgent
medical indication for these interventions (e.g. increased risk
of cancer).
• Protection of the child’s integrity is essential. Given the
uncertainties and imponderables involved, a psychosocial
indication cannot in itself justify irreversible genital sex
assignment surgery in a child who lacks capacity.
Special Medical Treatment
UN Special Rapporteur on Torture report on abuse in
health care settings 2013
• Children who are born with atypical sex
characteristics are often subject to irreversible sex
assignment, involuntary sterilization, involuntary
genital normalizing surgery, performed without
their informed consent, or that of their parents, ‘in
an attempt to fix their sex’, leaving them with
permanent, irreversible infertility and causing
severe mental suffering.
Risks and consequences
• a significant risk of making the wrong decision
• the consequences of a wrong decision would be
grave and serious.
Risks:
–
–
–
–
–
–
Assignment to the wrong sex
Genitals surgically altered to conform to wrong sex
Loss of sexual function
Loss of sensitivity
Trauma
Unnecessary surgery
Risks and consequences
• While we have the data to say they are going to end up identifying as
females... and we have evidence that surgical outcomes are good,
and sensory outcomes and sexual function are good, where’s the
pressure to change the practice?
Assoc. Prof Grover, quoted in The Age 20 June 2013
• for other conditions, where there is more certainty about future
gender identity, the risk of making a wrong decision about such
surgery would be less significant.
Victorian Health Department Decision-making Principles
• There is limited evidence reporting long-term outcomes of early
surgical management for reasons of appearance. The few outcome
studies reported have conflicting results of good and poor outcomes
(cosmetic, sexual, or psychological), with particular concern
regarding sexual function and sensation. (emphasis added)
Australasian Paediatric Endocrine Group
MC v State of South Carolina
• Even in circumstances where the individual
ultimately identifies with the gender the
doctors attempted to assign, they have
been forced to undergo an extraordinarily
invasive, non-consensual genital
restructuring.
MC v State of South Carolina
To see this simply as an instance of medical
malfeasance and negligence is to miss the larger
cultural point. Doctor’s didn’t just treat a condition
or a disease incorrectly or too hastily. They didn’t
treat a medical disease at all. The procedure was
done without any medical justification whatsoever,
as is historically the case with most intersex infants
who undergo such operations.
Erica Landau, Huffington Post