No Sex Selective Surgery On Intersex Child Except To Save Child's Life: Kerala High Court

The Kerala High Court has ordered that sex-selective surgery on intersex children shall be permitted only based on the opinion of a State Level Multidisciplinary Committee that the surgery is essential to save the life of the child. The Court has also directed the state to constitute the said Committee consisting of experts, which shall include a Pediatrician/Pediatric Endocrinologist, Pediatric Surgeon and Child Psychiatrist/Child Psychologist.

The Bench of Justice VG Arun passed the judgment declining to direct surgery on the writ petitioner's child. The Bench directed the Committee thus constituted to examine the child within two months and decide whether the child is facing any life-threatening situation by reason of the ambiguous genitalia. If so, ordering that permission can be granted for carrying out the surgery.

Advocate T.P. Sajid appeared for the petitioner while Government Pleader PS Appu appeared for the state. Advocate Indulekha Joseph appeared as an amicus curiae.

It is noted in the judgment that the writ petition was filed on the basis that Karyotype Report-46XX of the child is indicative of the child being a female. "The child is 7 years old and has a uterus, ovaries and an over sized clitoris. The urinal and vaginal opening are one and the same and a short common channel from the opening splits and travels separately to the uterus and urinary bladder", the Court notes in the judgment.

Since the doctors refused to perform surgery, the writ petition was filed. It was contended by the father of the child that the surgery is imperative as the child has started noticing the distinctive features. The petitioner also contended that the child could face social ostracization if the surgery is not done. The Government Pleader told the Court that the medical board that examined the child recommended the constitution of a State Level Multidisciplinary Committee.

In its judgment, the Court explains the medical conditions of the child. "The terms 'gender’ and ‘sex' are often used interchangeably in casual conversation, but are actually two distinct concepts related to human identity and biology. Sex refers to the biological characteristics of a person, particularly in relation to their reproductive anatomy and chromosomal composition. Gender, on the other hand, is a social and cultural construct that encompasses the roles, behaviours, expectations and identities associated with being male-female or non-binary", the Court observes in the judgment.

After referring to the judgments in the NALSA case, the Transgender Persons (Protection of Rights) Act, 2019, the Puttaswamy judgment, a 2019 judgment of the Madras High Court in the matter of Arunkumar & Anr. v. Inspector General of Registration, Chennai & Ors., and a 2022 judgment of the Delhi High Court in the matter of Srishti Madurai Educational Research Foundation v. Government of NCT of Delhi & Ors., the Court holds as follows:-

"... 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 orientation towards the gender, other than the one to which the child was converted through surgical intervention."

Thus, the Court directed the constitution of the State Level Multidisciplinary Committee with a direction to examine the petitioners’ child within two months and permit surgery if the child is facing any life-threatening situation. "The Government shall issue an order regulating sex selective surgeries on infants and children within three months. 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", the Court directed.

While parting, the Court also quoted from a poem 'I'm fluid' by Sarah Crouse.

Cause Title: XXXX & Anr. v. The Health Secretary & Ors. WP(c) No. 19610 of 2022

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