Kerala High Court: In a petition brought by parents of a child born with ambiguous genitalia seeking permission to conduct genital reconstructive surgery for raising the child as a female, V.G. Arun, J. opined that permission for conducting genital reconstructive surgery without child’s consent would impinge the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India violating the child’s dignity and privacy and directed the State government to issue an order for regulation of sex-selective surgeries on infants and children.
Background
The said prayer was based on Karyotype report indicating the child being a female who was 7-years-old and had a uterus, ovaries and an over-sized clitoris. The child had a common urinal and vaginal opening, and a short common channel from the opening which split and travelled separately to the uterus and urinary bladder, a medical condition certified as ‘Congenital Adrenal Hyperplasia’. The child was undergoing treatment for the same and doctors had advised genital reconstructive surgery, but no one was ready to conduct the same without obtaining orders from a competent court. Therefore, the parents approached the Court through a petition seeking a writ of mandamus or suitable orders/directions in the instant matter.
The Court considered the question of whether the parents had the right to decide their minor child’s gender without such minor’s consent, being ignorant of the child’s orientation.
Medico-Legal Issues
The Court explained the rare condition of ‘Ambiguous genitalia’ identified in less than 10 lakh persons out of 130 Crores, termed as ‘Congenital Adrenal Hyperplasia (CAH)’ which falls under a larger group called ‘Disorders of Sex Development (DSD)’. It further split and clarified the terms, ‘Congenital’ means present at birth, ‘Adrenal’ is related to adrenal glands and ‘Hyperplasia’ is hyper growth. The condition of having both male and female reproductive organs is termed as Hermaphroditus. The Court pointed out towards the mythology and history containing stories of transexual (hermaphrodite) gods and rulers and the source of term hermaphrodite.
The Court explained that “the terms ‘gender’ and ‘sex’ are often used interchangeably in casual conversation but are actually two distinct concepts related to human identity and biology. Sex refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition. Gender, on the other hand, is a social and cultural construct that encompasses the roles, behaviours, expectations and identities associated with being male-female or non-binary.” The Court referred to the article ‘The Five Sexes’ published by Anne Fausto -Sterling. It further hinted towards the problems faced by intersex infants and children as discussed in the United Nations Convention on the Rights of the Children (‘UNCRC’) and identification of non-consensual gender conforming interventions by Council of Europe and the European Union as violative of children’s rights to bodily integrity and privacy.
The Court brought in light that the minimum age requirement for sex reassignment surgery was fixed at 18 in countries like Austria, Denmark, Italy, Netherlands, Spain, Sweden, etc. While Croatia allowed minor children to have sex reassignment surgery if they have parental consent. The Court commented that only a few countries came forward with legislation for regulating or permitting genital reconstruction/affirmation surgery and even for them, the age of consent was different.
The Court regarded National Legal Services Authority v. Union of India, (2014) 5 SCC 438 as the path breaking judgment which opened a space for challenging gender-binary straitjacket with legal recognition and protection of gender variations. The Court further cited K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1 while hinting towards privacy in context of an individual’s choice. The Court also cited various provisions of Transgender Persons (Protection of Rights) Act, 2019 regarding the issue of consideration. The Court concluded that the right to choose gender is vested with the individual concerned and no one else.
The Court explained that in the instant case, parents sought permission on behalf of their minor child, which would have been allowed in normal circumstances, bit it required conducting non-consensual sex affirmative surgery. The Court was cautious of granting such permission based on karyotype report with the explanation that there was possibility of such child developing male like tendencies in adulthood, which could not be ruled out.
Risks related to Sex Reassignment Surgery of Minors
The Court referred to the article titled ‘Protecting the Rights of Children with Intersex Conditions from Non-consensual Gender Conforming Medical Interventions’ published in Medical Law Review which highlighted the severe evidentiary deficit of therapeutic benefits of non-consensual intervention and also suggested surgical interventions to be unnecessary which may result in irreversible mutilation of children’s bodies. It further cited a report of the World Health Organization titled ‘Sexual Health, Human Rights and the Law’. The Court further referred to the Madras High Court’s observations while dealing with non-registration of marriage between a male and a transwoman in Arunkumar v. Inspector General of Registration, 2019 SCC OnLine Mad 8779, which prompted the Tamil Nadu government to issue orders banning sex reassignment surgeries on intersex infants and children. The Court also referred to recommendations of Delhi Commission for Protection of Child Rights in Srishti Madurai Educational Research Foundation v. Government of NCT of Delhi and Others (Civil Writ Petition No.8967of 2021 dated 27.07.2022).
Court’s Conclusion
The Court opined that permission for conducting genital reconstructive surgery without child’s consent would impinge the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India violating the child’s dignity and privacy. The Court was cautious that “it may also result in severe emotional and psychological issues if, on attaining adolescence, the child develops orientation towards the gender, other than the one to which the child was converted through surgical intervention” since the medical records did not make a case warranting immediate intervention.
Therefore, the Court directed the government to constitute a State Level Multidisciplinary Committee with experts including a Pediatrician/Pediatric Endocrinologist, Pediatric Surgeon and Child Psychiatrist/Child Psychologist. The Court directed the Committee to be constituted to examine the child within 2 months and decide if the child was facing a life-threatening situation due to ambiguous genitalia and if permission could be granted for such surgery. The Court further directed the government to issue an order to regulate sex-selective surgeries on infants and children within 3 months. Until the given time, the Court restricted sex selective surgery to be permitted specifically on the opinion of a State Level Multidisciplinary Committee depicting the same to be essential for saving the child’s/infant’s life.
[X v. Director of Health Services, 2023 SCC OnLine Ker 6244, decided on 7-08-2023]
Judgment by: Justice V.G. Arun
Advocates who appeared in this case :
For Petitioners: Advocate T.P. Sajid, Advocate Safwan K., Advocate Shifa Latheef, Advocate Muhammed Haroon A.N., Advocate Muhammed Musthafa K.;
Others: Government Pleader P.S. Appu, Amicus Curiae Indulekha Joseph.
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