Abstract
Children are children first and girls and boys second. If genital surgery on an intersex child is not necessary for preservation of life or treatment or prevention of likely serious illness, the decision whether and how to operate can be deferred until the child is old enough to express an informed view about the options and in a forum that addresses conflicts of interest. That age depends on the intervention and risks. The decision is not a simple clinical one to be taken by doctors, nor by frightened parents following clinical advice, or the dictates of culture or religion. All these criteria are genuinely promoted “in the best interests of the child”, which emerges as distinct from “the rights of the child”. Such surgery falls outside the range of lawful authority of parents to give a valid consent and requires other authorization. If the child patient and the parent are both unable to give valid consent, it falls outside the ethical and legal authority of the surgeon. Professional associations and ethics committees should be informing their members that, without court or other tribunal authority, doctors perform this kind of surgery at their professional peril.
Apologium
In this chapter I have unashamedly relied on the views of adult intersex people as equally valid as those of doctors, lawyers, and judges. I am not intersex myself and have no grounds to challenge the experience of those who are. Some regard them as “activists”, as if applying that label somehow affects the validity of their opinions. Nor am I a doctor. I regard both groups as knowing a lot more than I do. Nor am I the parent of an intersex child, and I acknowledge the parents’ expertise and the agony of their ongoing decisions and doubts where I have been spared them. All I can hope to comfort them with is that when searching for non-blue and non-pink clothing size 00 for our own baby in 1992 I did find a lot of yellow, green, and purple. I hope the range has improved.
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Notes
- 1.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 (“Marion’s Case”).
- 2.
Personal email to author, 23 June 2010.
- 3.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 443.
- 4.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 444.
- 5.
Per Deane J. Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 449.
- 6.
Warne G. Special medical procedures in relation to children with disorders of sex development and adolescents with transexualism, 5th World Congress on Family Law and Children’s Rights, Halifax 2009.
- 7.
http://oiiaustralia.com/files/submissions/national-human-rights-consultation/ for copy of the Submission; site accessed 5 August 2009.
- 8.
By The Carpenter, copyright Arnold, J., Daughters Inc., Vermont, 1973.
- 9.
Ibid page 102.
- 10.
(1988) 94 FLR at pp 30–31.
- 11.
(1988) AC 199, at p 204.
- 12.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 409.
- 13.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 423.
- 14.
See footnote 3.
- 15.
JOINT LWPES/ESPE CAH WORKING GROUP Writing Committee: Peter E. Clayton, Royal Manchester Children’s Hospital, Manchester, United Kingdom; Walter L. Miller*, University of California, San Francisco, California; Sharon E. Oberfield, Columbia University, New York, New York; E. Martin Ritze’n, Karolinska Institute, Stockholm, Sweden; Wolfgang G. Sippell*, University, J Clin Endocrinol Metab, September 2002, 87(9):4048–4053, 4049, http://jcem.endojournals.org/cgi/content/full/87/9/4048. Accessed 28 June 2009). To consider the evidence for best practice, to formulate management guidelines, and to consider innovative therapies, The Lawson Wilkins Pediatric Endocrine Society (LWPES) and The European Society for Pediatric Endocrinology (ESPE) convened a meeting in Gloucester, MA, 14–17 March, 2002. The 40 participating physicians, psychologists, scientists, and surgeons from 12 countries on 4 continents agreed with the [following] consensus statement; this statement is concerned exclusively with CAH caused by 21-hydroxylase deficiency and does not address the other, rarer forms of CAH.
- 16.
Email to OII Australia, copied to author dated 29 July 2009.
- 17.
- 18.
Gillick v West Norfolk AHA (1986) AC 112.
- 19.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at pages 439–440.
- 20.
Re Plomley; Vidler v. Collyer (1882) 47 LT (N.S.) 283, at p 284.
- 21.
Bartholomew, op cit page 6.
- 22.
Gillick v West Norfolk AHA (1986) AC 122.
- 23.
Lord Scarman, Gillick v West Norfolk AHA (1986) AC 122 at pages 183–184; see also page 189, 194–195.
- 24.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 400.
- 25.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 410.
- 26.
Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 411.
- 27.
See foornote 3.
- 28.
See footnote 4.
- 29.
See footnote 5.
- 30.
Per Mason CJ, Dawson, Toohey and Gaudron JJ. Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 412.
- 31.
These Applications are dealt with in Chap. 4 of the Family Law Rules 2004.
- 32.
Cf Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 and P v P [1994] HCA 20.
- 33.
See Re K (1994) 17 Fam LR 537; FLC 92–461.
- 34.
A Human Rights Investigation into the Medical “Normalization” of Intersex People, Human Rights Commission of the County and City of San Francisco, 28 April 2005, located at www.sfgov.org/humanrights.
- 35.
Available at http://www.hreoc.gov.au/genderdiversity/surgery_intersex_infants2009.html. Accessed 5 August 2009.
- 36.
Greenberg, Julie A. “International Legal Developments Protecting the Autonomy Rights of Sexual Minorities: Who Should Decide the Appropriate Treatment for an Intersex Child?” Ethics and Intersex 87, Sharon Sytsma, ed., Springer, 2006.
- 37.
“Policy Statement : Evaluation of the Newborn with Developmental Anomalies of the External Genitalia” 14 Pediatrics, 106 (July 2000) at 118.
- 38.
Refer to testimonials posted on OII, ASNA, AISSG websites.
- 39.
Per McHugh J. Secretary of the Department of Health and Community Services v JWB and SMB (1992) 15 Fam LR 392 at 458.
- 40.
AISSG Preferred Treatment Paradigm For Children With Intersex Conditions [monogram], 28/3/2003, AISSG Australia Inc., Altona Meadows, Australia.
References
OII Australia (2009) On Terminology. http://oiiaustralia.com/about/terminology/. Accessed 4 Aug 2009
Bartlomew T (2009) How general practitioners determine young people’s rights. Youth Stud Aust. 28(2):5
Blackburn, Taylor (eds) (1991) Human rights for the 1990s. pp 90–91
Carney T (1992) “Reconciling the irreconcilable? A rights or interest based approach to controllability” in children, rights and the law. In: Parker S, Seymour J (eds) Alston P. Clarendon Press, Oxford, pp 119–125
Daaboul, Frader (2001) Ethics and the management of patients with intersex: the middle way. J Pediatr Endocrinol Metab 1575
Diamond M, Sigmundson HK (1997) Sex reassignment at birth: Long-term review and clinical implications. Arch Pediatr Adolesc Med 151(3):298–304
Diamond M, Sigmundson HK (2009) Op.cit cited at http://en.wikipedia.org/wiki/Intersexuality. Accessed 4 Aug 2009
Framilin B (1995) “The case for children’s rights: a progress report” in the handbook of children’s rights; comparative policy and practice. In: Franklin B (ed) Routledge, New York, pp 3–22
Goswami BA (2009) About the general scientific and medical use of the term “Intersex”, OII Australia website, http://oiiaustralia.com/files/articles/term-intersex-term-dsd/. Accessed 4 Aug 2009
Hart H (1982) Essays on Bentham: studies in jurisprudence and political theory. Clarendon Press, Oxford
Marañón Gregorio (1929) Los estados intersexuales en la especie humana. Madrid: Morata
OII International (2009) http://www.intersexualite.org/Organisation_Intersex_International.html. Accessed 4 Aug 2009
OII Official Positions (2009) http://www.intersexualite.org/English-Offical-Position.html. Accessed 4 Aug 2009
Richard D (1993) Children, rights and childhood. Routledge, London
Van Mil E, Hiort O (2008) Three out of four: A case discussion on ambiguous genitalia. Eur J Endocrinol 159(1):S91–S93
Wollstonecraft MA (1792) Vindication of the rights of woman: with strictures on political and moral subjects
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Mason, P. (2013). Intersex Genital Autonomy: A Rights-Based Framework for Medical Intervention with Intersex Infants. In: Denniston, G., Hodges, F., Milos, M. (eds) Genital Cutting: Protecting Children from Medical, Cultural, and Religious Infringements. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6407-1_11
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