The Kerala High Court has recently ruled that subjecting a minor to non-consensual sex-affirmative surgery would constitute a violation of the child’s dignity and privacy.
The court concluded while rejecting a petition filed by the parents of a 7-year-old child with ambiguous genitalia, seeking permission to undergo genital reconstructive surgery for their child, aiming to raise them as a female.
Justice VG Arun, in an order issued on August 7, emphasized that tampering with an individual’s right to choose their sex or identity would inevitably infringe upon their privacy and undermine their dignity & freedom.
However, the court, considering the parents’ concerns over the health of the child, stating necessary interventions can be made based on the recommendation by a “duly constituted medical board”.
The court proceeded to instruct the government to establish a State Level Multidisciplinary Committee comprised of experts, including a pediatrician/pediatric endocrinologist, a pediatric surgeon, and a child psychiatrist/child psychologist.
Also, the court directed the government to formulate regulations governing sex-selective surgery on infants and children within a span of 3 months.
The court stated, “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.”
While recognizing the significance of chromosomal analysis reports, the court deemed them insufficient to grant permission for such surgeries, as the possibility of a child with Karyotype-46XX manifesting male-like tendencies in adulthood could not be ruled out.
The court stated in its order, “…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 an orientation towards the gender, other than the one to which the child was converted through surgical intervention.”
Meanwhile, the court also said for that instance, 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 ambiguous genitalia.
The court determined that a medical board should examine the petitioners’ child within 2 months and ascertain if the child faces any life-threatening situation due to ambiguous genitalia.
The court stated, “If so, permission can be granted for carrying out the surgery.”
Further, the court underscored that the fundamental right of an individual to choose their sex or gender identity, as a pivotal aspect of self-determination, dignity, and freedom, must be acknowledged and respected.
