'Genital Reconstructive Surgery Without Consent Violates Child's Rights' : Kerala High Court Calls For Regulating Sex Selective Surgeries

The Kerala High Court on Monday directed the Government to constitute a State Level Multidisciplinary Committee consisting of experts to examine requests for performing sex-selective surgeries on intersex children. 

The Committee is to comprise of a Pediatrician/Pediatric Endocrinologist, Pediatric Surgeon and Child Psychiatrist/Child Psychologist. 

The Single Judge Bench of Justice V.G. Arun also called upon the Government to issue an order for regulating sex selective surgeries on infants and children within three months. The Bench clarified that until such order has been issued, such surgeries shall be conducted only on the opinion of the State Level Multidisciplinary Committee that the same would be essential to save the life of the child. 

The Court in this case was considering a petition by the parents of a 7-year-old child born with ambiguous genitalia, seeking permission to conduct a genital reconstructive surgery for raising the child as a female. The child was diagnosed of 'Congenital Adrenal Hyperplasia', and was undergoing treatment for the same. The doctors advised genital reconstructive surgery for the child. The parents of the child were aggrieved that despite having approached various experts, none of the doctors were prepared to conduct the surgery without orders from the competent Court.

They thus approached the Court, placing their reliance upon Karyotype Report-46XX, which was indicative of the child being a female. 

The counsel for the petitioners contended that the surgery was imperative since the child had started noticing the distinctive features. The counsel submitted that the condition of the child may lead to it being subjected to social ostracization, and that the parents of the child were best suited to decide the future of the child. The counsel contended that delaying the same would only result in undue trauma to the child and hardship to the family. 

The Government Pleader P.S. Appu submitted that the medical board that had examined the child based on the direction of the Court had suggested the constitution of State Level Multidisciplinary Committees which would be competent to take a studied and legally sound decision in situations such as the present. 

The Court had also appointed Advocate Indulekha Joseph as the Amicus Curiae in the matter, who submitted a detailed report, after consulting doctors in the relevant field. 

The Court in this case was called upon to decide the question as regards the right of the parents to decide the gender of their minor child, without the minor's consent and ignorant of the child's orientation. 

The Court at the very outset, embarked upon a medico-legal discussion of the concept involved. It ascertained that while terms 'gender’ and ‘sex' are often used interchangeably in casual conversation, they are in actuality, two distinct concepts. It noted that 'sex' refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition, 'gender' is a social and cultural construct that encompasses the roles, behaviours, expectations and identities associated with being male-female or non-binary. 

The Court opined that while the request of parents on behalf of their minor child may have been allowed under normal circumstances, in the present case, permission was being sought for non-consensual sex affirmative surgery. It further observed that Karyotype-46XX report of chromosomal analysis would not be sufficient for granting the permission, as the possibility of a child with Karyotype-46XX developing male like tendencies in adulthood cannot be ruled out.

"On careful analysis of the relevant factors and consideration of the rights of the parents and the child, I find that, grant of permission for conducting genital reconstructive surgery would impinge the rights guaranteed under Articles 14, 19 and 21 of the Constitution of India and conduct of the surgery without consent would violate the child's dignity and privacy. Granting such permission 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," the Court observed.

The Court was of the considered view that although the petitioners had raised their concern regarding the child's health, medical records did not reveal a case warranting immediate intervention. "No doubt, there can be such intervention, if so recommended by a duly constituted medical board," it added. 

It thus issued a slew of directions for constituting a State Level Multidisciplinary Committee comprising of experts, which shall examine requests for performing sex selective surgeries.

The Court directed the said Committee to examine the petitioners' child within two months and decide whether the child was facing any life threatening situation by reason of the ambiguous genitalia, and grant permission for the surgery if the said question is answered in the affirmative. 

Advocates T.P. Sajid, Safwan K., Shifa Latheef, Muhammed Haroon A.N., and Muhammed Musthafa K. appeared on behalf of the petitioners. 

Case Title: XXX & Anr. v. The Health Secretary & Ors. 

Citation: 2023 LiveLaw (Ker) 382

Case Number: WP(C) NO. 19610 OF 2022

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