Should the Family Court Approve Genital Surgeries on Children with Intersex Conditions?
By Tony Briffa
An article written by Dr Sonia Grover and published in the February 2002 Medical Journal of Australia (Vol 176, Number 3) discussed the issue of menstrual and contraceptive management in women with intellectual disabilities. Although this is not directly relevant to children with intersex conditions, I was interested in the level of legal protection some with intellectual disabilities rightly have to their physical integrity.
When a young woman with an intellectual disability has problems with heavy or irregular bleeding which affects her quality of life, doctors must first obtain the authority of the Family Court of Australia if their recommended treatment involves irreversible procedures such as hysterectomy. Further, “surgical options were considered only after all other approaches, including education, support and medical treatments, had failed.” As a consequence, of the 107 patients seen by the author over the years 1990 to 1999, only two had surgical intervention.
The requirement for the Family Court of Australia to approve these surgeries is a direct result of the judgment of the High Court of Australia in “Marion’s Case”, which found that a disabled person had a presumption of the right to physical integrity. Given that some people with intellectual disabilities are considered unable to give legal consent to these irreversible procedures, doctors must seek authority from the Family Court who will make that decision on their behalf.
I believe there are similar quality of life and human rights issues that warrant children with intersex conditions being afforded the same legal protection. Children with intersex conditions have no less a right to their physical integrity. Where a child with an intersex condition is too young to give consent to irreversible surgeries, some of which may render them infertile (particularly given the rate of improvement in assisted reproductive technologies), a decision made by the Family Court would best consider representation and outcomes for all parties and ensure that full disclosure of options is made. Involvement by the Family Court may also ensure that doctors are more willing to consider alternatives to surgical intervention, such as support and counselling, rather than opting for a scalpel as a first option and may further provide a degree of legal protection for all parties that currently does not exist.
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