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 7

between the parents' consideration of the benefits to the ill child and the risks to the donor child. [FN95] In such cases, courts require parents to show that the donation would affirmatively serve the best interests of the donor *144 child through some discernable benefit to the donor child. [FN96] Courts occasionally allow psychological evidence to show a benefit to the donor child and weigh this evidence against potential physical risks from the extraordinary medical treatment. [FN97] In cases where siblings are very close, courts often allow the donation in view of the potential psychological benefit to the donor of not losing a sibling. [FN98]

Advocates of non-therapeutic genital-normalizing surgery similarly argue that, despite the fact that the procedure may not be medically necessary, there are psychological benefits to an intersexed child who has genital surgery early. [FN99] However, these psychological benefits are conjectural with respect to intersexed infants, have been disputed by dissatisfied adults who had infant surgery, [FN100] and are supported only by case studies of adults satisfied with their gender assignment (as opposed to genital appearance). [FN101] In these respects, genital-normalizing surgery is distinguishable from court-approved sibling organ donation.

Instead, genital-normalizing surgery is more analogous to cases where courts have refused to grant permission for organ donation due to a lack of undisputed affirmative evidence showing that the siblings were close. [FN102] In such cases, a court will not assume that a psychological benefit exists based on a parental conjecture; rather, parents must affirmatively demonstrate the benefit. [FN103] Because of the highly contentious debate surrounding intersex surgeries, this unequivocal evidence cannot be provided.

A final example of a potential categorical conflict of interest between parent and child that may cause the state to intervene is when a treatment decision interferes with an individual's rights and interests. An individual's right to *145 procreate is fundamental. [FN104] Several lower courts have also found that the right not to procreate through sterilization is also fundamental. [FN105] For example, the Colorado Supreme Court held that judges' decisions to authorize non-medically necessary sterilizations of incompetent adults or minors must be scrutinized carefully because "[s]terilization involves a surgical invasion of bodily integrity. It destroys 'an important part of a person's social and biological identity[,] ... can be traumatic for the individual, and can have 'longlasting detrimental emotional effects."' [FN106]

Many of these same factors are implicated in the case of genital-normalizing surgery as there is a surgical invasion of bodily integrity and "such surgery poses serious risks to the intensely personal rights related to identity and erotic and possibly reproductive potential." [FN107] Accordingly, the analogy to forced sterilization provides further justification for restricting parental authority.

Thus, the potential emotional conflict that parents may have when their child is born with ambiguous genitalia, the contention that cosmetic genital- normalizing surgery is a non-therapeutic medical procedure similar to sibling organ donation and sterilization, and the potential restriction that normalizing surgery places on the right to procreate counsel against deference to parental decisionmaking on genital-normalizing surgeries. Courts should scrutinize these decisions closely when deciding what is in the best interest of the child and should not give weight to potential psychological benefits that have not been proven.

III. BENEFITS OF AN INFORMED CONSENT STANDARD

The treatment of intersex children is symptomatic of what has been called the "last frontier of discrimination"--bias based on rigid ideas about masculinity and femininity. [FN108] Although the arguments for a moratorium presented in Part II *146 may be legally and ethically valid, the political feasibility of a moratorium is quite another matter. Although the courts have had opportunities to challenge the dimorphic sex model, they have avoided confrontation and completely ignored the issue. [FN109] Thus, because a comprehensive legal treatment that takes account of the unique characteristics of intersexuals would require a massive overhaul of our legal system, not to mention our social mores, it is understandable that moderates are pushing for some sort of incremental step, such as informed consent, that will provide at least some protection to intersexed infants in lieu of a complete moratorium.

While a moratorium would require that the medical community accept an absolute rejection of genital-normalizing surgery, a moderate approach could recognize the medical community's lack of consensus regarding how to address the presence of ambiguous genitals. [FN110] The response of moderates within the medical and legal communities

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