Sentencia SU 337/99, Constitutional Court of Colombia (12 May 1999)
Action brought against the Colombian Institute of Family Welfare and the Office of the Public Advocate (Defensor del Pueblo de la Seccional del Departamento XX) by the plaintiff mother on behalf of her 8 year-old intersex child, NN. Neither defendant had been involved in the medical treatment of NN, but a medical team would only perform surgery with the defendants’ permission.
As the sole guardian of NN (whose father was recently deceased), the plaintiff alleged that a refusal to allow her to consent to medical treatment of her minor child’s condition was a violation of equal treatment, freedom of personal development, and protection of childhood. The lower court held that, under Sentencia T-477/95, the plaintiff’s consent could not be substituted for that of her minor child. The case was sent to the Constitutional Court, where the 7th Chamber of Revision nullified the action against the Colombian Institute of Family Welfare and Office of the Public Advocate and added the Office of Social Welfare and the presiding doctor as defendants.
The midwife who delivered NN declared the child to be female and NN was raised as a girl. At the age of three a paediatric doctor found that NN was a pseudohermaphroditic male, meaning that NN had difficulty synthesising testosterone and possessed ambiguous genitalia, including a three-centimetre phallus, a scrotum, labia folds and interior gonads. Subsequently, a medical team recommended genital-conforming surgery including a clitoroplasty, vaginal remodelling, and the removal of NN’s gonads. The team found that NN’s phallus would never be large or function like an average penis and urged surgery before the child reached puberty. The medical team then refused to perform the surgery because the Constitutional Court had previously held that parental permission could not be substituted for the permission of the child and that the child could not make such a decision until the age of majority. The plaintiff sought permission from the court to substitute the plaintiff’s consent since the child was still a minor and “could not make decisions for herself”, contending that, if the medical team were to wait for the child to have “the capacity to decide, it would be too late and would prevent normal psychological, physical, and social development”.
Whether requiring the mature consent of the plaintiff’s child to perform genital-conforming surgery violated the right to equal treatment, freedom of personal development, and the protection of childhood.
Constitution of Colombia, Article 1 (human dignity) and Article 16 (right to free development of personality).
Sentencia T-477/95, Constitutional Court of Colombia, 1995 (holding that, where an infant’s male genitalia were damaged in an accident and surgeons had assigned the female sex, parents could not choose the sex of their child without the child’s informed consent).
Convention on the Rights of the Child, Article 3 (requiring States to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents).
International Covenant on Civil and Political Rights, Article 5 (respecting the responsibilities, rights and duties of parents), Article 7 (requiring free consent to medical or scientific experimentation), Article 8 (right of the child to preserve his or her identity), Article 12 (States to assure to the child who is capable of forming his or her own view the right to express those views in all matters affecting the child), and Article 18 (primary responsibility of parents or legal guardians for the upbringing and development of the child).
Reasoning of the Court
The Court noted that there was little jurisprudence on intersex issues and that almost all cases referring to sexual identity dealt with homosexuality and transgender issues. Nevertheless, the Court emphasised that determining consent in intersex surgical cases was important because about one in every 7,000-10,000 persons were born with indeterminate gender. The Court estimated that about 15,000-37,000 intersex persons lived in Colombia.
Because of the lack of information, the Court conducted a scientific and medical inquiry into the nature and frequency of hermaphroditism and solicited medical opinions on possible treatments before issuing an opinion. A questionnaire was submitted to various domestic and international hospitals and universities and third-party interventions were also requested.
The three main legal elements of parental consent were: (1) the urgency and importance of the treatment to the interests of the child; (2) the risks and the impact/intensity of the treatment on the current and future autonomy of the child; and (3) the age of the child. The Court therefore also requested details as to the urgency of medical procedures in intersex cases, the benefits and harm that could result from medical interventions or lack thereof, and the optimal age for such procedures.
The responses revealed the complexity of the topic. There were two competing schools of thought regarding the medical, psychological, legal, and moral complications, including the possibility of seriously impacting personal autonomy and the right to personal development. Those advocating ‘surgery’ were primarily doctors and academics, and they urged surgery as early as possible. Specifically, they said that genital ambiguity could be traumatic and frustrating for both the parents and the child and that the child might have serious problems adjusting to ambiguous gender identity, and could suffer rejection by peers and parents. Further, they felt that early surgery and sex assignment was especially important because they believed that gender identity was formed within the first two years of life and solidified within the first five. Even if surgery were not possible in the first few months of life, these doctors felt that surgery must be performed before puberty. However, the majority of doctors had seen few intersex cases and many referred to transgender operations, ignoring differences in age and the purpose of the surgery. The Court criticised recourse to the North American medical case “John-Joan”, because the doctors who had stated that John (a baby boy who lost his penis during a botched surgery) was successfully “made” into a girl failed to mention that at puberty John refused female hormone treatments, rejected further vaginal reconstruction, and had transitioned to living as a man before being told that he was born “male”.
Those who were in favour of seeking the consent of the intersex individual were a minority of doctors and medical academics and civil society organisations like the Intersex Society of North America (ISNA). They argued that genital-conforming surgery, which was invasive, irreversible, and painful, impacted individual autonomy. INSA testimonials also stated that surgery affected sex lives and in some cases had amounted to sexual mutilation. Further, reproductive organs could not be “repaired” and sexual feeling was often lost due to the removal of sensitive tissue. They criticised three aspects of pre-consent surgery: (1) the lack of medical criteria for determining sex and the use of the size of the genitalia as a determining factor; (2) the imperfection of parental informed consent, because parents were often given insufficient or deceptive information; and (3) the lack of studies confirming that the invasive plastic surgery had to be done before children could decide for themselves. These advocates proposed that parents should: (1) make an early gender choice, not based solely on the size of the phallus or clitoris, but on the likely balance of hormones at puberty; (2) be provided with a clear, complete and honest account of all options, and immediately receive psychological support from professionals specialising in this field; and (3) know that the child might develop gender traits inconsistent with the chosen gender.
The Court added some qualifying observations. It noted that the number of surgery advocates was far larger than the number of consent advocates, and that the proposed alternatives were not necessarily feasible. Further, surgical procedures had advanced, making it less likely that sexual sensitivity would be destroyed; and the medical community was improving communication with parents.
The Court submitted the criticisms of ISNA and other doctors who opposed pre-consent surgery to the pro-surgery faction, and requested comments. In some cases, doctors refused to respond, and were reproached for this by the Court. In other instances, the ISNA stance led doctors to question their willingness to perform surgery on infants who could not provide informed consent.
In the Court’s view, and in accordance with Article 7 of the ICCPR, consent was central to medical autonomy because individuals must decide how they want to approach personal health as free moral agents. Furthermore, consent was part of the constitutional right to personal development. In a pluralistic modern society, personal beliefs and experiences informed personal medical decisions, and the patient’s decision must be respected because it is “our personal convictions that allow us to live with dignity and meaning”. However, the Court stated that consent was not an absolute requirement when constitutional values collide, and thus involved case-by-case determination. If a patient was unable to provide consent, or if refusal would have grave health risks for a third party, consent could be given by someone other than the patient.
Informed consent was established by judging: (1) the invasiveness of the procedure and the patient’s level of understanding; (2) the degree of medical qualification in relation to the risk; and (3) the ability of the patient to accept the risk with an objective and critical self-awareness. The final point was especially important, and required the patient to have adequate knowledge and understanding of relevant data. It was the duty of the doctor to provide the patient with all necessary information, including alternatives and counselling. Information was to be provided neutrally, so that the patient could make an informed decision without being influenced by the doctor’s view of the alternatives.
The Court noted that intersex cases presented a special issue of consent, because conflicting constitutional and international law imperatives supported each side of the argument. While a parent or guardian did not have to right to endanger a child’s life, children were not always aware of their best interests. As a result, parents and guardians were often partially responsible for medical decisions concerning children. Young adults were “under the care of parents, but not under their absolute control”. Article 16 of the Constitution upheld the right to free development of personality, establishing the constitutional right to personal identity and autonomy. An essential element of any life plan, and of individual identity, was the feeling that one belonged to a particular sex. Article 44 maintained that State and society have an obligation to assist and protect children to ensure their full and harmonious development and full exercise of their rights. CRC Articles 18, 3.2, 5, 7, 8, 14.2, 42, and 44 all established the rights of children in relation to their best interest. This included the right to know their parents, the rights of the parent, and State obligations to the child. Furthermore, the family was at the heart of society and was an essential space of pluralism. Yet Articles 19 and 20 also provided for the suspension of the rights of the parent. These Articles were especially relevant with regard to medical consent, because on the one hand the promotion of parental rights helped guarantee parental involvement in the child’s life, while on the other hand the State must sometimes determine that the child’s best interests override the rights of the parent. The Court concluded that there was no evidence for saying that surgical intervention was right or wrong: it compared the situation to one in which a new, highly experimental, and extremely risky cancer treatment is proposed for a child who has no other medical options.
The Court attempted to balance these competing concerns. While the autonomy and free development of the child was of the utmost importance, and might be negatively affected by surgery, the child’s right to personal development was also extremely important, and might be negatively affected by failure to perform surgery at a young age. The Court resolved this issue by finding that both domestic and international law established parents and family as the ultimate care provider for the child; a child’s autonomy and free development required acceptance and support by parents and social environment. Where parents had considered all aspects of the medical debate, had understood and weighed the options according to the interests of the child, and had been provided with psychological support that enabled them to make a rational decision based on the child’s well-being, parental consent might substitute for the child’s consent. However, parental consent had to be “informed, qualified and persistent”.
The Court noted that the urgency of surgery diminished substantially with age. Psychologists tended to agree that by the age of 5 “a child has not only developed a defined gender identity but is also aware of what happens to his or her body and can [understand] different gender roles and express their wishes”. Therefore the Court found that consent could only be substituted before the age of five.
In the present case, NN was eight years old. Not only had the urgency of surgical intervention diminished but the child already had a developed gender identity and showed no problems either psychologically or socially. The Court found that a child of eight already had a sense of autonomy, and prior cases established that the need to protect the right of free development grew as a child became more self-aware. The Court therefore concluded that, constitutionally, consent could not be substituted if a child had a full cognitive, social, and emotional understanding of his or her body and a gender identity firmly in place. The Court reasoned as follows. (1) the original urgency to operate was lessened because the child had already developed a gender identity and become aware of his or her genitalia. Also, the child was probably better able to define his or her own gender identity during puberty with the help of counselling. (2) A child exposed to surgery without a reason would be likely to be confused and to feel it had been punished: he or she would need to be informed in order to avoid the dangers associated with unexplained and invasive change. (3) An older child had greater autonomy and therefore benefited from greater constitutional protection. For children of five or older, therefore, surgery should be postponed until the child could consent.
The Court stated: “Intersexuality appeals to our capacity for tolerance and challenges our ability to accept difference. Public authorities, the medical community and citizens in general have a duty therefore to open a space for these people [who have been] silenced up till now.” The Court concluded that in intersex surgery cases a medical team of urologists, endocrinologists, geneticists, gynaecologists, and psychiatrists should be asked to address all the physical and mental aspects of the child’s gender identity, identify the medical and non-medical interventions, and set out the possible benefits and harms of each approach. The family should be clearly appraised of all risks, side effects and dangers, and the decision should be made based on which sex the child would best be able to adapt to throughout life. The Court held that a generic application would not work in intersex cases and the medical team would have to assess each case on an individual basis.
NN was an older child and the Court found that denying immediate access to surgery was not a grave compromise of her right to life. Therefore the mother could not authorise surgery or hormone treatment. Because NN was eight years old, invasive medical procedures could only occur with the child’s informed consent. The Court therefore required that a medical team be established to help support both the plaintiff and the child and ensure that they were both completely informed of all treatment options. If the medical team then found NN to be sufficiently autonomous to provide informed consent, she could have surgery before the age of majority. In the alternative, the ability for informed consent could be approached on a sliding scale, with less invasive procedures taking place first and the rest following as NN matured.
Sentencia SU 337-99, Constitutional Court of Colombia – Spanish (full text of judgment in Spanish, PDF)