WASHINGTON, DC, May 18, 2013 – In a groundbreaking lawsuit, the adoptive parents of an intersex child, identified as M.C., are suing the South Carolina Department of Social Services, Greenville Hospital System, and the Medical University of South Carolina for performing medically unnecessary sex-assignment surgery when the toddler was 16 months old and in foster care.
M.C.’s condition, previously known as hermaphroditism, is described as intersex, where an individual’s genitalia and or reproductive system does not fit the general definitions of male or female.
Each year an estimated 2,000 babies are born “intersex,” a set of over 60 different conditions that fall under the diagnosis of “DSD” (Differences/Disorders of Sex Development), occurring more often than Down syndrome or cystic fibrosis.
The lawsuit, the first of its kind, was filed on behalf of M.C. by his adoptive parents, Advocates for Informed Choice (an intersex legal rights group) and the Southern Poverty Law Center. The complaint alleges that the medically unnecessary surgery—to make M.C. appear female—was a violation of M.C.’s constitutional rights, and the result of medical malpractice, gross negligence and a violation of M.C.’s right to privacy.
According to the complaint, at birth, the child had both male and female reproductive organs as well as “ambiguous genitals.” M.C.’s doctors identified him as male in both the labor and delivery summary and newborn identification form.
He was later diagnosed with ovotesticular DSD, also known as “true hermaphroditism” because there is a presence of both ovarian and testicular tissue. There are no medical standards to determine the gender of an infant with M.C.’s condition, especially at a young age.
Despite determining that M.C. could be raised as either a boy or girl, doctors made the decision to perform surgery that “radically restructure[d] his reproductive organs in order to make his body look female.” With the consent of the South Carolina Department of Social Services, doctors removed healthy genital tissue, potentially sterilizing and eliminating sexual function when the toddler was 16 months old.
The surgery was performed before M.C. was adopted by Pam and Mark Crawford, a psychiatrist and stay-at-home father. While the surgery was performed to identify M.C. with a female, from a young age he began to identify as male.
Despite initially being raised as a girl in accordance with the surgery, M.C. is currently living as a boy. His parents, pediatrician, school, and friends are all supporting the eight-year-old’s decision to live as a male.
Medical procedures like the one undergone by M.C. have been performed on intersex infants in the U.S. since the 1950s, however, the ethics of this practice have been questioned in recent years.
In cases where children are born with mixed or ambiguous markers of biological sex (chromosomes, gonads, internal reproductive system, genitalia), current medical authority supports assigning a child a gender but not performing surgery until the child is old enough for gender identity to emerge and the child and guardians can make the appropriate decisions regarding surgery. This also includes the choice whether to have any surgery at all, since surgery involves the risk of sterilization and elimination of sexual function.
According to the lawsuit, at 16 months, M.C.’s gender identity had not emerged and doctors knew that in cases like M.C.’s there was a significant risk that the patient would ultimately reject the gender assigned. Indeed, one of the doctors named in the complaint had previously written a medical journal article stating that “carrying out a feminizing-genioplasty on an infant who might eventually identify herself as a boy would be catastrophic.”
While the surgery is irreversible and despite identifying as a boy, M.C. will never be able to reproduce as a male. His parents say they brought the suit in the hopes that this doesn’t happen to other intersex children.
This case is important on several levels. For one thing, it brings attention to a condition that gets very little attention aside from the sensationalism surrounding the occasional celebrity rumors or the misunderstanding of intersex athletes like South African Olympic runner Caster Semenya.
“These are not storylines that serve to accurately define what intersex is, discuss why intersex is such a highly-charged issue, and help people to understand that we’re neither unrelatable weirdos, nor objects of fascination whose bodies and identities are available for public consumption,” writes Claudia, an intersex commentator. “We’re just people, who happen to be intersex.”
Moreover, this case questions who gets to decide what kind of procedures can be performed on intersex children before they are old enough to consent to a life-altering procedure that is not medically necessary.
In general, parents and guardians have the power to consent on behalf of a child concerning necessary medical procedures. However, this case differentiates between a life-saving or medically necessary procedure and one that is cosmetic and could have catastrophic physical, psychological and emotional implications for the individual in the future.