Sex assignment of infants

This is a prepublication version prepared for the Internet. Publication occurred in the Michigan Journal of Gender & Law, Volume 7 (1): 1-63, 2000.

This version may be different than the published version.An Emerging Ethical and Medical Dilemma: Should Physicians Perform Sex Assignment on Infants with Ambiguous Genitalia?

by

Hazel Glenn Beh and Milton Diamond * |
| | | | || | Introduction |
| | The Remarkable Case of Joan/John |
| | The Development of a Surgical Standard of Care |
| | | | A. Standards of Care Within the Medical Community |
| | | | B. The Surgical Standard in Treatment of Ambiguous Genitalia |
| | | | C. Standard Care and Malpractice Claims |
| | Parental Consent to Genital Surgery and Sex: Reassignment on Behalf ofChildren |
| | | | A. The Doctrine of Informed Consent |
| | | | B. Consent and Parental Decision Making on Behalf of Infants |
| | | | C. The Problems of Informed Consent and Infant Genital Surgery |
| | Learning from the Past: What Should the Future Hold? |
| | Concluding Thoughts |
| | Footnotes |
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| I. Introduction:This article discusses thedevelopment of a surgical approach to treating intersex[1] infants and others with genital anomalies that began in the late 1950s and 1960s and became standard in the 1970s. Although professional literature has recently questioned the surgical approach to the treatment of infants, controversy surrounding treatment persists and the medical community has divided. How surgical treatment including sexreassignment surgery for intersex infants became a routine recommendation of practitioners and how parents were persuaded to consent to such radical surgeries on their infants provides a cautionary tale that is relevant both for medicine and law.Over the past four decades, early surgical intervention for infants who are born with ambiguous genitalia[2] or who suffer traumatic genital injury often hasbeen recommended as standard procedure.[3] Surgical advances in this century have made it possible for physicians to choose a gender[4] for the child and then to sculpt gender appropriate genitalia to an approximation of normal-looking appearance. For the most part, when choosing surgical treatment, physicians have opted for a female form because it is easier to fashion female genitalia thanmale.[5] Relying on a nurture-based theory of gender identity, physicians advised parents to surgically alter their intersexed infant and to raise the child in a manner consistent with its surgically altered genitalia without regard to the gender identity that might have otherwise naturally developed.[6] The same advice has been offered for any male infant whose penis was considered significantly smallor had been severely mutilated by trauma. Clinicians have assured parents that the surgical potential for normal-looking genitalia should dictate the gender of rearing and that any innate gender propensity of the child can be changed by careful upbringing.Medical literature since the 1970s to the present, despite a paucity of confirming evidence, promoted this treatment based largely on a body ofpublished reports initially extrapolated from studies of intersexed [7] individuals and then the incredible case of a single infant that was widely reported in the professional medical, psychiatric and popular literature. In 1997, the medical community was reacquainted with the patient who had been long lost to follow-up.[8] Only then did the medical community finally discover that the outcome ofthis single case was not as first reported and the bases on which this treatment rests began to crumble.Part II of this article discusses the remarkable case of Joan/John (J/J), a male infant whose penis was destroyed by a surgical accident and who was then intentionally castrated and surgically transformed into a female-looking infant. [9] Touted as a success, this case report became the...