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Parental choice on normalising cosmetic genital surgery

BMJ 2015; 351 doi: https://doi.org/10.1136/bmj.h5124 (Published 28 September 2015) Cite this as: BMJ 2015;351:h5124

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Re: Parental choice on normalising cosmetic genital surgery

Liao, Wood, and Creighton clarify the consequences of the absence of a protocol to support alternatives to surgical normalisation of children with atypical sex anatomy. A robust protocol is long overdue. For too long, the “decision” presented to parents has been framed as a choice between active medical intervention (which often involves surgery) or “doing nothing,” what is presented also as a decision between “choosing normality” and “choosing abnormality.” Put in these terms, we may readily appreciate why parents continue to decide in favor of normalising surgeries even in the absence of evidence supporting their “success” in promoting psychosocial flourishing.

However, the promise the authors ascribe to the recent German legislation “to allow parents to leave the gender of their baby blank on the birth certificate” may be misplaced; a closer look at the legislation suggests it does not provide the genuine options parents should have.

It is true that news reports (appearing for example, in Der Spiegel in Germany; National Public Radio and The Wall Street Journal in the US; and BBC News in the UK) described the German legislation (effective November 1, 2013) as helpful in providing parents with a third “option.” This was particularly important in Germany, as parents have only one week to register their children as either male or female; it appears that before the recent law, parents relied on physicians to “fix” intersex children through the use of surgical and hormonal sex “normalisations” so as to enable them to register children’s births as required. Rather than a “blank,” however, parents would register their children as “X.” “X” is intended as a temporary category until such time as one or other sex is assigned.

The Swiss activist group Zwischengeschlect (“Between Genders”) suggests that prevailing understanding of the law and its promise get the legislation wrong, however. Rather than providing parents increased options, the law stipulates that parents of children with atypical sex anatomies are in fact prohibited from registering their children as “M” or “F;” the legislation furthermore mandates children’s entry “into the register of births without such specification.” If, from a physician's perspective, a child’s anatomy does not conform to the category of male or female, there is no option but to withhold the male or female labels given to “normal” children.

It does appear that the initial aim of the legislation was to decrease the likelihood of normalising surgeries – surgeries that have been criticized not only in the 2012 German Ethics Council report that inspired the legislative change, but also in numerous other reports including reports by the Swiss National Advisory Commission, and the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Paradoxically, the new legislation may have the net effect of promoting these surgeries so that children with atypical sex anatomy can be registered as “M” or “F”.

The 2012 German Ethics Council report recommended the category “other” as a way to defer sex assignment “until [individuals] have decided for themselves.” The new category was meant to protect newborns with atypical sex anatomy from harm resulting from children’s bodies being made to fit the categories of male or female. The Ethics Council condemned normalising interventions in strong terms: “Irreversible medical sex assignment measures in persons of ambiguous gender infringe the right to physical integrity, to preservation of sexual and gender identity, to an open future and often also to procreative freedom.” The German Ethics Council’s recommendation for a third category of sex assignment was not meant to be a quick fix, but was to be one among many measures to address the serious violations of human rights their report acknowledged and sought to rectify. But the effect of the German law bears little resemblance to the original proposal made by the Ethics Council.

Acknowledging the shortcomings of the German law (which, absent normalising interventions, requires children with atypical sex anatomy be set apart) is not to say that legislative reform has no role to play in ending ongoing violations of human rights, or cannot provide physicians guidance. But clearly legislative reform is not enough. Also in need of reform are the attitudes that make normalizing interventions seem imperative. Rather than see the problem in the bodies and identities of those with atypical sex anatomy, we should properly locate the problem in our responses, and thereby see the problem as a matter of culture. Physicians charged with the care of children with atypical sex anatomies have a responsibility to distinguish between conditions that require medical care (as indeed some conditions associated with atypical sex anatomies do), and those which call for the sort of alternative that Liao, Wood, and Creighton propose.

Competing interests: No competing interests

30 September 2015
Ellen K. Feder
Professor
American University Department of Philosophy and Religion
4400 Massachusetts Ave. NW; Washington, DC 20008; USA