By: Merrin Muhammed Ashraf
Intersex persons are persons born with atypical genital organs which make it difficult to characterize them as male or female. It is viewed as a ‘disorder’ by some groups of medical practitioners and the traditional ‘treatment’ model is the performance of surgery in infancy to reconstruct the genital organ so as to make the child conform to one of the binary genders. The child is obviously incapable of giving consent to the surgery and the parents easily give the consent fearing societal reaction to the condition of their child.
Earlier this year, the Tamil Nadu government issued a Government Order banning sex-reassignment surgery (hereinafter ‘SRS’) on intersex children, except in life-threatening situations. There is little doubt that the Government Order is a positive step. However, a ban on SRS on intersex children will deprive the parents of such children any say as to how they want their child to grow up. The question that then needs to be addressed is whether the protection of intersex children from intrusive and medically unnecessary surgery is a compelling interest that warrants the state to assume parens patriae role and supplant the right of the natural parents to take decisions on behalf of their child. This article aims to examine this question.
WHO ARE INTERSEX AND WHAT ARE THE CHALLENGES THAT THEY FACE?
‘Intersex’ is a broad term used to refer to persons who are born with reproductive organs or sexual anatomy that does not conform to the stereotypical definitions for male or female bodies. One in every 1500-2000 children are reported to be born with intersex conditions and about 40 variations in intersex conditions have been recognised so far. Earlier, medical practitioners viewed the intersex condition as a disorder or deviation that needs to be corrected at the earliest. Since the 1950s, the prevalent way of ‘treating’ intersex condition has been to resort to surgical alteration of genitalia of intersex children and to assign them sex considered desirable by the parents and doctors.
SRS is usually done during the infancy of the intersex child and it marks not the end, but the beginning of a series of medical procedures that continue through puberty and adulthood. Based on incomplete and biased information presented by doctors, the parents readily consent to these surgeries in the hope that it would help their child to ‘fit in’. However, these surgeries are greatly invasive and their outcome is irreversible. There have been many reported cases of intersex children growing up to identify themselves with a gender different from what they have been surgically assigned. This results in great physical as well as emotional trauma. Intersex children are, thus, deprived of the right to determine their gender identity and sexuality due to a medical procedure to which they were incapable of giving consent. Their bodily autonomy and privacy are also endangered due to the invasiveness of the medical procedure involved.
Despite the growing evidence which points to the counter-productive effect that SRS can have on intersex persons, sadly, it continues to be the norm among medical practitioners even today. However, some groups of medical practitioners have strongly taken a stand against unnecessary surgical intervention for intersex persons. A joint statement released by various UN bodies in 2015 condemned performance of medically-unnecessary SRS on intersex persons without their informed consent and termed it as a human right violation.
WHAT DOES THE TAMIL NADU GOVERNMENT’S ORDER SAY?
In August this year, the Health and Family Welfare Department of the Tamil Nadu government issued a Government Order 9hereinafter ‘GO’) banning the performance of sex normalization surgery on intersex infants and children, except in life-threatening medical circumstances. In order to ensure that the permitted exception of ‘life-threatening circumstances’ does not get misused, the GO requires the Director of Medical Education to set up a four-member committee consisting of a pediatric surgeon/urologist, endocrinologist, social worker/psychology worker/intersex activist and a government representative not below the rank of undersecretary to undertake a case-by-case assessment of the existence of a life-threatening condition. With this GO, the Tamil Nadu government becomes the third in the world, after the Government of Malta and Government of Chile, to ban the performance of sex normalizing procedures on intersex persons without their informed consent.
The GO was issued in compliance with the directive of the Madras High Court in the case of Arunkumar v. The Inspector-General of Registration. In this case, the court had to adjudicate a writ petition concerning the validity of the marriage between a transwoman (who was born an intersex) and a cisgender male. In deciding the marriage validity, the court interpreted the expression ‘bride’ occurring in Section 5 of the Hindu Marriage Act, 1955 to include within its meaning not only a woman but also a transwoman. The court ruled that the only consideration is how the person perceives himself/herself. Gender-identity is a matter of privacy and personal autonomy of an individual and the court observed that not even the state authorities can question the self-determined gender identity of a person.
While upholding the validity of the marriage, Justice Swaminathan, the sole judge who presided over the case, went a step ahead and made an elaborate discussion on the problems faced by intersex persons. He disapproved the performance of SRS on intersex infants solely based on parental consent, as it could have life-long mental and physical consequences for the children. Perhaps, his most important observation in the judgment was that “the consent of the parent cannot be considered as the consent of the child.”
While making the foregoing observations, Justice Swaminathan referred and reaffirmed the ruling in the landmark case National Legal Services Authority v. Union of India (hereinafter ‘NALSA case’) wherein the Supreme Court recognised the right of a person to be legally recognised according to his self-identified gender without the requirement of undergoing medical procedures such as SRS. It is this ruling of the Supreme Court that the Madras High Court sought to implement by directing the Tamil Nadu government to issue an appropriate order outlawing SRS on intersex children.
The Madras High Court’s decision assumes importance at a time when the Transgender Persons (Protection of Rights) Bill, 2019 has been introduced to give effect to the NALSA case. The Bill provides for setting up of a screening committee to certify an individual as a transgender. Such a provision is in direct contravention of the Supreme Court’s ruling which recognised an individual’s right to self-determination of gender as an integral part of the right to dignity and personal liberty under Article 21 of the Constitution.
The court’s direction to the state government is also in consonance with Article 39(f) of the Constitution which directs the state to ensure that children are given an opportunity to develop in a healthy manner with freedom and dignity. As reported cases reveal, the forceful performance of SRS in infancy robes intersex children of a dignified life, especially so if they grow up to identify with a gender different from what they have been surgically assigned.
PARENTAL CONSENT v. THE DOCTRINE OF PARENS PATRIAE
The right of the parents to take decisions concerning their child is a fundamental principle recognised by all States and affirmed by the UN Convention on Rights of Child (UNCRC). Parents are presumed to act in the best interest of their child. However, whether this presumption always holds valid is a different question.
It is often seen that parents of intersex children would rather have their child undergo the complex medical procedures to correct their ‘deformity’ than face the discomfort of raising an intersex child. The Tamil Nadu GO which bans SRS on intersex children effectively forecloses the right of the parents of such children to make decisions concerning their gender on behalf of them.
The GO may be justified on the ground that apart from parents, the State also has an interest in the well-being of the children. This is embodied in the doctrine of parens patriae which refers to the power of the state to act as guardian to those incapable of taking care of their own interests. However, the state and the parents may not always be in agreement as to what is in the best interest of the child. This is amply evidenced by the past incidents in India as well as abroad when parents refused medication for their children on religious grounds. The question then is, whose decision shall prevail?
It seems that Indian courts have not deliberated much on the potential conflict that can arise between the rights of the parents and the parens patriae role of the state. In contrast, the courts in the US have, in many instances, attempted to strike a balance between the two. Most importantly, in two cases, Pickup v. Brown and Doe v. Christie, the US Courts upheld the validity of statutes which prohibited parents from requiring their child to undergo conversion therapy, which is a medical practice that attempts to change an individual’s sexual orientation. In both these cases, the courts ruled that the parents’ right to “care, custody and control of their children” can be legitimately curtailed by the state if it is of the considered view that a particular medical treatment consented to by the parent is not in the best interest of the child. Moreover, it is a cardinal principle laid down by UNCRC that in every action concerning children, the best interest of the child shall be the primary consideration (Article 3). Thus, a decision which advances the best interest of the child shall prevail, whether it is that of the parents or of the State.
As observed earlier, invasive, irreversible and medically unnecessary interventions like SRS violate various rights of the intersex children, most importantly their right to privacy. Gender identity and sexuality are matters most private to an individual. SRS performed in infancy deprives intersex children of their right to determine their own gender. In the light of the above-cited authorities, it can be concluded that the Tamil Nadu Government’s G.O which supplants the parent’s right to take decision on behalf of their intersex child, is a justified assumption of parens patriae role as there exists a compelling interest to protect the rights, health and welfare of such children.
It is also pertinent to take note of Article 12 of UNCRC which calls for the States to assure participation of children in making decisions concerning them. This is a safeguard against the ‘best interest’ of the child being solely determined by the parents and the state. In the General Comment 12 issued by the UN Committee on the Rights of Child, the Committee stressed on the need to give due importance, according to age and maturity, to the views of the children including that of young children in making healthcare decisions. Therefore, Article 12 acts as a restraint on the parents’ absolute right to control the upbringing of their child. SRS on intersex children are usually performed in their infancy when the children are incapable of exercising their right under Article 12. In the absence of life-threatening medical conditions, the performance of SRS is best deferred until the child attains maturity. By banning the performance of SRS on intersex infants, the Tamil Nadu government has sought to give primacy to the right of the child to take decision regarding his/her gender over the parent’s right to determine the same.
Today, doctors in countries like the US are increasingly opposing the performance of SRS on intersex infants and are instead advocating for its postponement until the child is capable of deciding for themselves the gender which they identify with. Such an approach would safeguard the privacy, right to self-determination and bodily autonomy of intersex persons. It is high time that the medical practitioners in India take note of the change in the international approach. They should advise the parents against the performance of SRS on their intersex child and educate them about the special needs of such children.
The Tamil Nadu government’s decision to ban SRS on intersex infants and children is a step in the right direction and should be emulated by other states as well as at the national level. This G.O. is an affirmation of the view that gender and sexuality are very personal to an individual and should be self-determined rather than being assigned by parents and doctors. It is also an affirmation of the view that the traditional suzerainty asserted by parents over their child can be curtailed by the state if the parent’s decisions do not bode well for the welfare of the child.
(Merrin is currently a 4th year BA LLB (Hons.) undergraduate at the National University of Advanced Legal Studies (NUALS), Kochi. She has a keen interest in Constitutional law, Environmental law, and issues concerning gender, privacy and rights of accused, undertrials and convicts.)
Cite as: Merrin Muhammed Ashraf, ‘Ban on Sex-Reassignment Surgery on Intersex Children: Resolving the Conflict Between Parental Consent and the Doctrine of Parens Patriae’ (The RMLNLU Law Review Blog, 6 December 2019), <rmlnlulawreview.com/2019/12/06/ban-on-sex-reassignment-surgery-on-intersex-children-resolving-the-conflict-between-parental-consent-and-the-doctrine-of-parens-patriae/> date of access.