The Court issued the directive subsequent to examining the plea of a couple aiming to allow genital reconstructive surgery for their child, born with ‘ambiguous genitalia,’ in order to raise the child as a female. On Tuesday, the Kerala High Court mandated the state government to regulate surgeries for sex-selective purposes on neonates and children within a span of three months.
Justice VG Arun added that until such regulations are put into effect, sex-selective surgeries can be performed solely based on recommendations from a multidisciplinary committee at the State level.
The High Court issued this order following its review of a petition filed by a couple (the petitioners) who sought permission for genital reconstructive surgery to raise their 7-year-old child with ‘ambiguous genitalia’ as a female.
The court was informed that the child had been diagnosed with ‘Congenital Adrenal Hyperplasia,’ which falls under the Disorders of Sex Development (DSD) category.
Furthermore, it was conveyed that medical practitioners had recommended genital reconstructive surgery for the child who was undergoing treatment. However, none of the doctors were willing to proceed with the surgery without a court directive, prompting the parents to seek guidance from the High Court.
Ultimately, the High Court declined to grant permission for the surgery solely on the basis of the parents’ request, as it believed such a decision might not align with the child’s wishes.
“Authorization for nonconsensual sex affirmative surgery is being pursued. The Karyotype-46XX chromosomal analysis report is insufficient for granting permission, as it cannot be ruled out that a child with Karyotype-46XX will develop male-like tendencies as an adult,” the court ruled.
Advocate TP Sajid, representing the petitioners, argued that the surgery was necessary as the child had begun to identify with certain gender-specific traits. The parents also expressed concerns about potential social exclusion for their child in the future.
Referring to the parents’ choice to raise the child as a female, advocate Sajid contended that the parents were best suited to determine the child’s future. He posited that delaying the decision could lead to unwarranted distress for the child and hardship for the family.
However, according to Justice Arun, allowing genital reconstructive surgery without the child’s consent would violate the child’s dignity and privacy. The court established that such a move would constitute a complete infringement of the child’s rights under Articles 14, 19, and 21 of the Indian Constitution.
“Granting such permission may also result in severe emotional and psychological problems if, upon reaching adolescence, the child develops a preference for a gender other than the one to which he or she was surgically converted,” the High Court stated.
Subsequently, the High Court directed the State Government to establish a State Level Multidisciplinary Committee within two months to assess the child’s condition and determine whether the medical condition posed a threat to the child’s life.
The Court specified that this committee should comprise a pediatrician/pediatric endocrinologist, a pediatric surgeon, and a child psychiatrist/child psychologist.
The High Court additionally outlined that if the child is diagnosed with a life-threatening condition necessitating surgery, permission for the procedure may be granted.
Advocates TP Sajid, Safwan K, Shifa Latheef, Muhammed Haroon AN, and Muhammed Mustafa K represented the child’s guardians.
Attorney Indulekha Joseph served as amicus curiae, providing assistance to the court in this case.
Government attorney PS Appu represented the State.
