The Kerala High Court on Tuesday directed the State government to issue an order within three months to regulate sex-selective surgeries on infants and children.
Justice VG Arun added that until such regulation is issued, sex-selective surgery shall be permitted only based on the opinion of a State Level Multidisciplinary Committee constituted by the State government.
The High Court passed this direction while considering a plea filed by a couple (petitioners) to permit genital reconstructive surgery for raising their 7-year-old child, who was born with ‘ambiguous genitalia’, as female.
The Court was informed that the medical condition of the child was certified as ‘Congenital Adrenal Hyperplasia’ which fell under the category of Disorders of Sex Development (DSD).
The Court was further told that the child was undergoing treatment and that doctors had advised genital reconstructive surgery.
However, none of the doctors were prepared to conduct the surgery without orders from a competent court, prompting the parents to approach the High Court for directions.
The High Court, however, ultimately decided against directly granting permission for the surgery merely on the parents’ appeal, opining that doing so may be against the child’s consent.
“Permission is being sought to conduct non-consensual sex affirmative surgery. The Karyotype-46XX report of chromosomal analysis is 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,” the Court held.
Appearing for the petitioners, advocate TP Sajid submitted that surgery was imperative as the child had started to notice the distinctive features. The parents further raised concerns of possible social ostracisation that the child may face in the future.
Referring to the decision of the parents to raise the child as a female, advocate Sajid submitted that the parents were best suited to decide the future of the child. Delaying the decision may cause undue trauma to the child and hardship to the family, he contended.
However, Justice Arun opined that allowing the conduct of genital reconstructive surgery without the child’s consent would violate the child’s dignity and privacy. This would constitute a complete violation of the child’s rights under Articles 14, 19, and 21 of the Constitution of India, the Court held.
“Granting such permission may also result in severe emotional and psychological issues if, on attaining adolescence, the child develops an orientation towards a gender, other than the one to which the child was converted through surgical intervention,” the High Court pointed out.
The High Court proceeded to direct the State Government to constitute a State Level Multidisciplinary Committee to examine the child within two months and decide whether the child was facing any life-threatening situation by reason of the medical condition.
This committee should include a pediatrician/ pediatric endocrinologist, a pediatric surgeon and child psychiatrist/ child psychologist, the Court said.
If the child is found to be facing any life-threatening condition requiring surgery, then permission can be granted for carrying out the surgery, the High Court added.
The parents of the child were represented by advocates TP Sajid, Safwan K, Shifa Latheef, Muhammed Haroon AN, and Muhammed Musthafa K.
Advocate Indulekha Joseph assisted the Court as the amicus curiae in the matter.
Government pleader PS Appu appeared for the State.