Nithyakalyani Narayanan. V
On August 8th, the Kerala High Court directed the State government to issue an order to regulate sex-selective surgeries on infants and children within three months. Single-judge Bench of Justice VG Arun remarked that sex-selective surgery shall be permitted only based on the opinion of a State Level Multidisciplinary Committee constituted by the Kerala government until such regulation is issued.
The High Court passed this order while considering the petition filed by a couple 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 Bench was informed 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. Therefore, the parents approached the High Court.
The High Court ordered against directly granting permission for the surgery merely on the parents’ appeal, stating that the action may be against the consent of the child – “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 petitioner counsel argued that the surgery was imperative as the child had started to notice the distinctive features. The parents were concerned of possible social ostracisation that the child may face in the future. The counsel asserted that the decision of the parents to raise the child as a female is best suited to decide the future of the child and delaying the decision may cause undue trauma to the child and family.
The High Court opined that allowing the conduct of genital reconstructive surgery without the child’s consent is a violation of the dignity and privacy of the child. This action would be in violation of the child’s rights ensured under Articles 14, 19, and 21 of the Constitution of India –“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.”
Justice Arun directed 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. The bench insisted that this committee should include a paediatrician/ paediatric endocrinologist, a paediatric surgeon and a child psychiatrist/ child psychologist. The court permitted to carry out the surgery if the child is found to be facing any life-threatening condition that requires surgery.
Advocates TP Sajid, Safwan K, Shifa Latheef, Muhammed Haroon AN, and Muhammed Musthafa K appeared for the couple. Advocate Indulekha Joseph assisted the Court as the amicus curiae in the matter. Government pleader PS Appu appeared for the State.
Name of the case: xxx v. Health Secretary and Ors
Bench: Justice VG Arun