The Kerala High Court issued a directive on Tuesday, requiring the State government to issue a regulatory order within three months to oversee surgeries for gender selection on infants and children.
Justice VG Arun specified that until such regulations are in place, sex-selective surgeries should only be performed based on the evaluation of a State Level Multidisciplinary Committee established by the State government.
This decision was made as the Court considered 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’, designated as female.
The Court was informed that the child’s medical condition was diagnosed as ‘Congenital Adrenal Hyperplasia,’ categorized as a Disorder of Sex Development (DSD).
Additionally, it was conveyed that the child was undergoing medical treatment, and doctors had advised genital reconstructive surgery. However, none of the doctors were willing to proceed without a court order, prompting the parents to approach the High Court for guidance.
Nevertheless, the High Court decided against directly granting permission for the surgery based solely on the parents’ request, as this might infringe upon the child’s consent.
“The request seeks to perform non-consensual sex affirmative surgery. The Karyotype-46XX chromosomal analysis report alone is insufficient to grant permission, as the potential for a child with Karyotype-46XX developing male characteristics in adulthood cannot be disregarded,” the Court ruled.
Advocate TP Sajid, representing the petitioners, argued that surgery was essential due to the child’s growing awareness of distinct physical features. The parents also expressed concerns about potential future social exclusion.
Emphasizing the parents’ decision to raise the child as female, Advocate Sajid contended that the parents were best suited to make decisions regarding the child’s future. Delaying the decision could cause distress to the child and hardship to the family, he argued.
However, Justice Arun maintained that allowing genital reconstructive surgery without the child’s consent would infringe upon the child’s dignity and privacy. Such an action would violate the child’s rights as stipulated in Articles 14, 19, and 21 of the Constitution of India, the Court held.
“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 highlighted.
The High Court proceeded to instruct the State Government to establish a State Level Multidisciplinary Committee within two months to assess the child and determine if the medical condition posed any life-threatening situation.
The committee should include a pediatrician/pediatric endocrinologist, a pediatric surgeon, and a child psychiatrist/child psychologist, the Court specified.
If the committee determines that the child’s medical condition requires surgery to address a life-threatening situation, permission for the surgery may be granted, the High Court concluded.
The parents of the child were represented by advocates TP Sajid, Safwan K, Shifa Latheef, Muhammed Haroon AN, and Muhammed Musthafa K. Advocate Indulekha Joseph assisted the Court as the amicus curiae in the matter. Government pleader PS Appu appeared for the State.