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]

page 6

criteria for overriding parental decisions. For example, when parents attempt to deny medical treatment for religious or other reasons, the state may challenge and set aside decisions that are deemed not in the child's best interest. [FN77] In such cases, two criteria are used to determine when the state should intervene: (1) the burden and risk of treatment, and (2) the effectiveness of treatment. [FN78] Although in the case of infant genital-normalizing surgery parents are attempting to perform rather than deny medical treatment, these criteria are useful to demonstrate the justification for state intervention. First, the potential harm to procreative ability, identity, and erotic capacity counsels against taking the risk of treatment in the case of infant genital-normalizing surgeries; the risk of delaying surgery, except in a very limited number of medical emergencies, is small. [FN79] Second, whether surgery enhances a child's life is, at best, an unresolved question. Thus, under these criteria, the state should intervene to prevent infant genital-normalizing surgery.

However, applying the above criteria to the case of genital-normalizing *142 surgery is difficult. Whereas conflicts between parents and physicians usually pull the state into medical controversies, [FN80] physicians and parents often agree that infant genital-normalizing surgery is warranted. In these cases, no one speaks for the child's conflicting interests. Nonetheless, there are procedures that carry such a physical risk to the minor that affirmative court scrutiny is necessary regardless of parent-doctor unanimity. [FN81] Genital-normalizing surgery is such a procedure. [FN82]

In cases where parents and doctors agree, deference to parental decisionmaking can be overcome if it is shown that the parent decisionmaker has a conflict that has impaired his or her ability to consider the best interests of the child. [FN83] One commentator has called these conflicts "categorical conflicts" because they "have been found to exist in types of cases where the risk of conflict is so high that court intervention is deemed necessary." [FN84] When a categorical conflict exists, a neutral third party, usually a judge, reviews the decision before it is carried out. [FN85]

Categorical conflicts can arise where there is an emotional conflict that prevents the decisionmaker from considering the patient's best interest; this conflict arises in cases where the decisionmaker's and the patient's interests inherently diverge. [FN86] Categorical conflicts also arise in cases where extraordinary medical treatment is involved or where the treatment decision involves a countervailing constitutional right of the patient. [FN87] The case of genital-normalizing surgery on infants implicates all three of these categorical conflicts. Thus, parents should not have unfettered discretion to authorize genital surgery on their infants.

First, even if parents possess full knowledge of the arguments for and against genital surgery on infants, they can be in a fragile emotional state that may *143 interfere with their ability to consider the infant's best interests. [FN88] Such an "emotional conflict" can be evidenced by the presence of extreme emotions such as shock, fear, or anger that can accompany the discovery that one's child is intersexed. [FN89] One of the specific justifications for early surgery is to reassure parents at the stressful and upsetting time when they learn their child is not "normal." But this very justification, acknowledging as it does the fragile emotional state of parents during this "stressful and upsetting" time, shows instead that parents should not be able to consent to immediate surgery.

Some studies have shown that while parents are afraid to have an "abnormal" child, they would not choose to undergo surgery if they possessed a nonconforming trait themselves. Professor Dreger notes that when people with dark skin are asked if they would change their color, and when women are asked if they would rather be men, the answer is always no, they would not trade up for a "better model." [FN90] In a similar study, sociologist Suzanne Kessler had a group of men imagine that they had been born with a micropenis and asked if they would have wanted to be turned into a girl. Kessler also asked a group of women to imagine that they had been born with a large clitoris and asked if they would want their clitoris surgically shortened. [FN91] In response, both the majority of men and women answered that they would rather be left with a micropenis or a large clitoris than be surgically altered. [FN92] Interestingly, the answers changed when subjects were asked what they would do for their children in the same situation. [FN93] Because no justification for this double standard is given, it should be accorded no deference.

The second type of categorical conflict implicated in the case of infant genital-normalizing surgery arises because the procedure can be considered extraordinary medical treatment. Extraordinary medical treatment includes medically unnecessary, non-therapeutic procedures such as organ donation by a healthy minor. [FN94] This situation typically arises when a sibling of the potential donor is seriously ill. Courts are routinely involved in these cases because the procedure is non-therapeutic (as to the donor child) and because there is a potential conflict

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