Georgetown Law Journal
November, 2003

Westlaw ©2003 cite as 92 GEO L.J. 129

reprinted with permission of the author

Note

*129 WHO DECIDES? GENITAL-NORMALIZING SURGERY ON INTERSEXED INFANTS

Alyssa Connell Lareau [FNa1]

Copyright © 2003 by the Georgetown Law Journal Association; Alyssa Connell

Lareau

page 1

Is it a boy or a girl? This question, routinely asked prior to or immediately following the birth of a baby, may not always have an obvious response. [FN1] The multiple factors used to determine sex often provide inconsistent answers. It is not uncommon for an individual's chromosomes, hormones, internal sex structures, gonads, and external genitalia to vary from the dimorphic male- female mold. [FN2] Thus, each year approximately seventeen out of every 1,000 children are born outside this dimorphic mold [FN3] and are labeled "intersexuals." [FN4] Of those, between one in 1,000 and one in 2,000 may be subjected to surgery because they have ambiguous-looking genitals [FN5] that need to be "normalized." [FN6] In one *130 large U.S. hospital, four or five of these genital reconstructions occur each year; [FN7] five such surgeries occur each day in the United States. [FN8]

A proposed resolution to advocate for greater informed parental consent for genital-normalizing surgeries performed on intersex infants is currently pending in the American Bar Association's (ABA) committee approval process and, if approved by the committee, could be before the full ABA by mid-2004. [FN9] If adopted, the ABA resolution will be the first formal recognition by the American legal community of an issue that has divided the medical community over the last decade. However, advocates who desire a complete moratorium on infant genital-normalizing surgery rather than an informed consent standard are resisting this ABA action.

One might argue that this resistance typifies the divide between the "far left" activists who advocate an "all or nothing" approach to social change, and the more realistic legal advocates who promote incremental change. [FN10] However, in the case of genital-normalizing surgery, activists are not pushing the medical profession to accept something that is completely infeasible; the medical community has been debating the necessity of genital-normalizing surgery for some time. [FN11] Therefore, activists argue, by promoting informed consent as the best solution rather than as an incremental step, the ABA is potentially halting debate within the medical community and is inhibiting the feasibility of a complete moratorium.

Thus, opponents of the informed consent proposal argue that the legal and medical communities obscure the real issue by focusing the discussion on informed consent. Once physicians obtain parental consent, including a waiver of liability, their incentive to explore whether genital-normalizing surgery is medically necessary is diminished. In a sense, physicians shift responsibility for making the decision from themselves to the parents. This shift in focus leaves unanswered the antecedent question that legal advocates should be asking: *131 Whether parents have the legal right to consent to surgery on their infants that is irreversible, essentially cosmetic, and most often medically

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