Change Law to Ban Sex-Surgery on Infants, Professor Says
SEXUAL reassignment surgery should not be carried out on infants, Dr Milton Diamond said at a recent public lecture at the Victoria University law faculty.
Dr Diamond's lecture, entitled legal and ethical issues in the treatment of gender variance in children and adolescents, was jointly sponsored by the law faculty and the Ministry of Social Development.
The lecture gave an insight into how surgical treatment, including sex reassignment surgery for intersex infants, became a routine recommendation of practitioners, and how parents were persuaded to consent to such radical procedures.
Parents, however, should not be able to consent to such surgery, said Dr Diamond, a professor at the John A Burns School of Medicine at the University of Hawaii.
"The informed consent must be from the individual – the infant," he said. "Parents should not have the right to remove from the child what we call an open future. It's about preserving the child's right to self-determination."
Following the lecture, Dr Diamond gave LawTalk his thoughts on how this related to the law.
Currently, he said, physicians could do what they wanted and a law change would be needed to require that they were not able to perform surgery without the informed consent of the patient.
"I don't know New Zealand law. I suppose they must have informed consent, so I suppose they gain the consent of parents."
During the history of sexual reassignment surgery, something Dr Diamond describes as providing "a cautionary tale that is relevant both for medicine and law", physicians had argued a series of justifications that were neither medically nor scientifically valid.
One example was removing testes on the basis of the incidence of tumours. However, the incidence of testicular tumours was around 2%. The incidence of breast cancer was about 20%. "You don't go around routinely doing prophylactic breast removals," Dr Diamond said. "You wait until there is a sign of something happening. The same with testes."
A very good test of whether surgery should be carried out is known as the "thank you" test. This asks the question whether the patient would thank the surgeon for the procedure or not. "If you have a cleft palate and have surgery, the majority of people say 'thank you'. However, the majority of intersex people say 'no thank you' to sex reassignment surgery."
So how should the law be changed? Should sex reassignment surgery undertaken without informed consent be a criminal act, or should it be something for which a practitioner faces a disciplinary body of his or her peers?
"All of the above," Dr Diamond said. "Whatever has to be done to stop it. I don't want it to happen."
The incidence of intersex people was at least one in 100, Dr Diamond said during his lecture. The word 'intersex' was used to include a variety of gender variations, including people with one ovary and one testis, people with Androgen Insensitivity Syndrome and people with Klinefelter's Syndrome who have an XXY genetic make-up (to name just three).
"This is obviously a concern for human rights. Do we change laws for one in a million or one in 10,000 people? But do we change laws for one in a hundred people?"
When it comes to views on the management of infants born with ambiguous genitalia or who suffer traumatic genital injury, Dr Diamond comes from the opposite angle to the well-known New Zealand sexologist Dr John Money.
One of Dr Diamond's quotes is: "Nature loves variety. Society hates it." Dr Money's approach when faced with diversity that did not fall into the category of 'male' or 'female' was to advise parents to alter the child surgically and raise the child according to the assigned gender.
Medical literature since the 1970s has promoted this type of intervention, with the standard care for treatment of certain intersex conditions (as well as conditions such as micropenis and accidental penile amputation) being based on the case of David Reimer, born in 1965 as a boy.
Following a botched circumcision, Dr Money persuaded his parents to have their son completely castrated and raised as a girl. David was raised as "Brenda" until he was 14, when he started living as a boy. David went on to have his estrogen-created breasts removed, took testosterone injections, had surgery to create a penis and married.
Before the outcome of the case was fully reported in 1997, it had been touted as a success and a demonstration that gender could be assigned.
"Although the case had been widely reported and cited in the medical literature, the rejection of the assigned gender that the child exhibited did not appear in the literature when it might have had an impact on the developing standard of care. Instead the significance of the early reports of supposed successful sex change confirmed the apparent efficacy of this treatment as a 'standard of care' for certain infants and contributed to its wide acceptance," Dr Diamond and Hazel Beh (now associate dean of law at the University of Hawaii) wrote in a paper entitled An Emerging Ethical and Medical Dilemma: Should Physicians Perform Sex Assignment on Infants with Ambiguous Genitalia? This paper is available at www.hawaii.edu/PCSS/online_artcls/intersex/intersex00_00.html.
Dr Diamond has been touring New Zealand talking to lawyers, counsellors, clinicians and parents. His visit was proposed by Mani Bruce Mitchell, a New Zealand Association of Counsellors (NZAC) member, and the tour has been facilitated and supported by members NZAC's national executive.
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