Laws, just like in general society, have a heterosexual belief – that people should only be classified as male or female, putting intersex in a dilemma causing their parents to quickly bring him under a corrective surgery. In the vision of law, intersex are invisible for it only sees male and female (Reilly 2). In the United Stated of America, intersex children are not granted with protection of autonomy and bodily integrity, protection from sex discrimination, and permission to marry.
Also, the doctors who will perform the said corrective surgery, or the genital reconstruction surgery to be specific, are not required to have an informed consent from the intersex person for most people that are subject to the operation are still infants and are unable to give consents (Haas 54). Informed consent is a doctrine based on the principle that an adult human being has a right to know what will be done to his body (Martin part 4).
Parents are the only people who can give informed consent on the child’s behalf; unfortunately, they are unable to make the proper decision for they are mostly uninformed of their child’s condition. In addition, many intersex organizations such as ISNA have argued that a corrective surgery is considered as a “cosmetic genital surgery” and only benefited the parents rather than the child, they also claimed that it is unnecessary since intersex conditions are not life threatening.
Parent consent is required when a minor individual is set to under go a treatment; however, since intersex conditions are not life threatening, so any need for a surgery can be regarded as unnecessary (Martin part 4 sec. 2). Due to the absence of the need for an informed consent from the intersex individual, medical experts are not liable for any malpractice so there is no chance for an intersex adult to sue if he had undergone the said surgery.
However, due to the Fourteenth Amendment of the US Constitution which protects individuals from government actions that violates their fundamental rights – such as the right to bodily autonomy, right to reproduce or not, right to marry, and the right to make decision for raising children – an intersex child can sue the hospital where he or she had the surgery if it is a state hospital since it is considered as an action of the state to put him or her under genital reconstruction surgery (Haas 57).
The amendment also can be applied even if the child had or will have his or her surgery in a private hospital only if a judge ordered for the surgery to take place since only then will there be a state action – the child’s representative must prove to the court that the surgery is a violation of the child’s right to bodily autonomy against the proponents that claim that the surgery is for the child’s best interest.
Even though the parents of the child permitted the child to go through the surgery, the government can ignore the parents’ decision because their decision may not be for the child’s benefit. The Constitution considered genital reconstruction surgery as a major violation of one’s bodily autonomy and an option that a child should choose personally or with their parents (Haas 58). Another factor is that by letting a child undergo the said surgery, there is a tendency for the child to be sterilized, making him or her unable to give birth even though he or she could by chances do naturally or naturally.
People have the right to reproduce, however, since the surgery is done with removing the gonads and other organs that serves for reproduction, the people have taken away for the intersex child to reproduce and there are cases where an intersex can give birth (Haas 60). Lastly, the surgery can be a hindrance to the child’s right to marry. An intersex individual still must prove that he or she is an intersex and is an opposite sex of the person he or she will marry (Haas 60-61).
The surgery have gone against this right because there are instances where an intersex can be assigned as a male but grew up as a female and choose a male partner or vice versa, so if the surgery was not done, the people and the person concern will be able to see how he or she will turn out to be. Though they can change their gender and their birth certificates, this can only be done by going to another surgery and this can cause financial and emotional problems.