Kerala HC Directs State to Regulate Sex-Selective Surgeries

The Kerala High Court on Tuesday directed the State government to issue a regulation within three months for overseeing sex-selective surgeries on infants and children.

A single judge Justice VG Arun specified that until such a regulation is established, sex-selective surgery would only be permissible based on the assessment of a State Level Multidisciplinary Committee formed by the State government.

The bench passed the direction while considering a plea filed by a couple (petitioners) seeking permission for genital reconstructive surgery for their 7-year-old child, who was born with ‘ambiguous genitalia’, assigned as female due to medical certification of ‘Congenital Adrenal Hyperplasia’ falling under Disorders of Sex Development (DSD) category.

The Court was apprised that the child was undergoing treatment and doctors recommended genital reconstructive surgery. However, medical professionals were reluctant to proceed without court authorization, leading the parents to approach the High Court.

Despite the parents’ appeal, the High Court abstained from directly granting surgical permission, expressing concern about potential lack of child 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.

Advocate TP Sajid, representing the petitioners, stressed the necessity of surgery as the child began noticing distinct features. The parents also voiced apprehensions about future social challenges.

While acknowledging the parents’ decision to raise the child as female, advocate Sajid contended that parents were best suited to determine the child’s future, suggesting delay might cause distress.

Justice Arun, however, believed surgery without the child’s consent would infringe upon the child’s dignity, privacy, and constitutional rights (Articles 14, 19, and 21).

“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.

Consequently, the High Court instructed the State Government to establish a State Level Multidisciplinary Committee, comprising a pediatrician-pediatric endocrinologist, a pediatric surgeon, and a child psychiatrist/child psychologist, to assess the child’s situation within two months. If life-threatening conditions necessitating surgery are identified, permission can be granted for the procedure.