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Legal Regulation of Genital Surgery on Intersex Children

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.

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Legal Regulation of Genital Surgery on Intersex Children

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  1. Legal Regulation of Genital Surgery on Intersex Children Aileen Kennedy

  2. 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.

  3. 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

  4. 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

  5. Legal Regulation • Parents can consent to surgery on young children • Two limitations on parental authority • Must be in the child’s best interest • 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

  6. Legal Regulation Applications for Special Medical Treatment on intersex children • Re A – 1993 • Re Lesley – 2008 • Re Sean and Russell – 2010 • Re 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’

  7. 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

  8. 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

  9. 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

  10. 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.

  11. 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.

  12. 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

  13. 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

  14. 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.

  15. 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

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