Non-consensual sex affirmative surgery on a minor would violate the child’s dignity and privacy, the Kerala High Court has held while dismissing a petition filed by the parents of a seven-year-old with ambiguous genitalia seeking permission for a genital reconstructive surgery to raise their child as female.
Justice V G Arun, in an order issued on August 7, said that intervention with an individual’s right to choose sex or identity will definitely be an intrusion into that person’s privacy and an affront to his/her dignity and freedom.
The court, however, considering the parents’ concerns over the health of the child, said necessary interventions can be made based on the recommendation by a “duly constituted medical board”.
It then directed the government to constitute a State Level Multidisciplinary Committee consisting of experts, which shall include a pediatrician/pediatric endocrinologist, pediatric surgeon and child psychiatrist/child psychologist.
The court also directed the government to issue an order regulating sex-selective surgeries on infants and children within three months.
“Until such time, sex-selective surgery shall be permitted only based on the opinion of the State Level Multidisciplinary Committee that the surgery is essential to save the life of the child/infant,” the court said.
The court observed that the report of chromosomal analysis was not sufficient for granting the permission as the possibility of a child with Karyotype-46XX developing male-like tendencies in adulthood cannot be ruled out.
“…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,” the court said.
“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 order said.
The court also said that, in the instant case, the medical board shall examine the petitioners’ child within two months and decide whether the child is facing any life-threatening situation by reason of the ambiguous genitalia.
“If so, permission can be granted for carrying out the surgery,” the court said.
It further said that the right of a human being to choose his/her sex or gender identity – which is one of the most basic aspects of self-determination, dignity and freedom – has to be recognised.
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