Queensland Family Court approves sterilising surgery on 5 year old intersex child

Re: Carla (Medical Procedure) [2016] FamCA 7

Summary

In the case of Re: Carla (Medical Procedure) [2016] FamCA 7, the Family Court made an order authorising the parents of a five year old girl to consent to her undergoing certain medical procedures, including a gonadectomy. 

Facts

Carla was born with 17 beta hydroxysteroid dehydrogenase 3 deficiency, meaning that she was born with female appearance, but with male gonads not contained within a scrotum. After receiving medical advice, Carla’s parents decided to raise Carla as a female and that her gender identity would be assessed in the future when it was developmentally appropriate to do so. The medical evidence before the Court, as well as that of her parents, suggested that Carla had developed a female gender identity, which was unlikely to change in the future. The treating paediatric psychiatrist in the matter formed this opinion based on a number of observations including the fact that Carla "prefers female toys, clothes and activities over male toys, clothes and activities, all of which are typically seen in natal boys and natal girls who identify as boys".

At the time of the Court case, Carla was five years old. Carla had previously undergone surgery twice to enhance her female appearance. Those surgeries included a clitorectomy and labioplasty.

The application before the Court sought orders authorising the parents to consent to a laparoscopic excision of both gonads (bilateral removal of her gonads) to help manage their daughter’s condition. The evidence before the Court was that the procedure was required in order to reduce Carla’s risk of cancer. It was said that Carla's gonads were in the wrong place which meant she had a 28% increased risk that cancer would develop. Further, if the gonads were not removed, there was a risk that testosterone would be produced which would further virilise Carla’s body, including for example, the development of a male physique. One of the factors against allowing the surgery to proceed was the fact that the operation would likely render Carla infertile.

An alternative to gonad removal was to move the gonads to the outside of the body so they were more easily able to be monitored for cancer risk. This option was said in the judgement to likely have ‘quite adverse psychological consequences’ but there appeared to be no evidence referred to on this point.

Decision

Justice Forrest was satisfied that the medical procedure in question was in the best interests of Carla and his Honour made orders authorising the parents of Carla to consent to her undergoing the medical procedure.

Notwithstanding his Honour's decision, Justice Forrest took the opportunity to consider whether the procedure required "the sanction of a Court". 

The Family Court had previously held in Re: Lesley (Special Medical Procedure) [2008] FamCA 1226 (Re Lesley) that the exact same medical procedure was one that fell within the principles enunciated in Secretary, Department of Health and Community Services v JWB and SMB (Re Marion). In Re Marion, it was determined that the parents could not lawfully authorise the proposed procedure, being a hysterectomy and ovariectomy, on their 14 year old intellectually disabled child without a Court order. 

Justice Forrest disagreed with the decision made in Re Lesley. His Honour determined that the procedure in question did not require the Court's sanction. His Honour considered the treatment in question as being “therapeutic” as it was required to “treat a genetic bodily malfunction that, untreated, poses real and not insubstantial risks to the child’s physical and emotional health”. Given that the treatment was classed as therapeutic (and not non-therapeutic), his Honour (in accordance with Re Marion) held that it was a case involving a decision that falls within the bounds of permissible parental authority. 

Commentary

The decision holds that the Court's sanction is not required in the factual circumstances of this case. This decision has caused concern that gender-related treatment of young intersex children may now be within the power of parents to authorise. 

Many advocates believe that scrutiny and oversight for decisions made for medical treatment of infants born with intersex variations is absolutely necessary due to the severity of possible risks. Many of the gender-related procedures can cause permanent infertility, pain, incontinence, loss of sexual sensation, and lifelong mental suffering, including depression. Advocates also contend that given the procedures are performed when the child is too young to be part of the decision-making, they may violate the child's rights to physical integrity, to be from torture and ill-treatment, and to live free from harmful practices.

Organisation Intersex International Australia considers that "surgical cosmetic 'normalisation'  is the most serious issues of concern to the intersex community". It is therefore imperative that medical treatment should be only one aspect of the overall management of intersex conditions and that where possible, elective surgeries performed on infants, which subject the child to unnecessary harm and risk, should be prohibited.

Catherine Hills is a lawyer at Lander & Rogers.

Additional commentary by Anna Brown of the Human Rights Law Centre

There are a number of disturbing and surprising aspects to this decision, which has led to wide criticism by human rights advocates and the intersex community.

It is understood that children born with 17 beta hydroxysteroid dehydrogenase 3 deficiency have a significant likelihood of growing up to identify as male. In this context, the proposal to confirm of Carla’s female gender assignment through surgery appears somewhat unusual, if not alarming. That the approval for the gonadectomy was not only granted by the court, but deemed unnecessary, even more so.

The judgment does not reveal consideration of the available medical literature about the likelihood of Carla growing up to identify as male given her particular deficiency. Instead, the evidence in support of the procedure in issue relies on superficial gender stereotyping including observations that Carla ‘happily wore a floral skirt and shirt with glittery sandals and Minnie Mouse underwear’.

The best interests of the child would dictate that any less intrusive available alternative should be preferred yet his Honour dismisses the option of monitoring Carla’s gonads on the outside of her body without elaboration of his reasons or engaging with the available evidence except to state that it ‘would be likely to have quite adverse psychological consequences’. A weighing of the balance of harms involved in the two options, including the adverse psychological consequences of rendering Carla infertile, is notably absent. Further, I understand from speaking to practitioners that the approach of moving the gonads to be external to the abdominal cavity is an option regularly explored in cases involving children with differences of sex development.

The judgment refers to a past ‘clitoral recession’ and labioplasty as a matter of factual record. These surgeries are similarly serious and irreversible with ‘feminisation’ as their described purpose and with no cancer risk to provide a medical justification. Despite this, the lack of court authorisation is not commented on by his Honour.  

This case is particularly disturbing misapplication of the principles in Re Marion and should prompt urgent review of the decisions made by the Family Court in these types of matters and government action to ensure that medical treatment of intersex minors is appropriately regulated and subject to sufficient scrutiny and oversight, in line with the outstanding recommendations of the 2013 Senate inquiry report into the Involuntary or coerced sterilisation of intersex people in Australia.

The full text of the decision can be found here.