Sentencia T-912/08, Pedro v. Social Security et al., Constitutional Court of Colombia, Chamber of Revision (18 December 2008)
Action brought before the civil court by the plaintiff father on behalf of his 5 year-old child against the office of Social Services and the General Northern Clinic. The civil court ruled against the plaintiff, asserting that the child was over the benchmark age for parental consent, that the mother had not given express consent for the surgery, and that the plaintiff had not demonstrated an informed, qualified, and consistent decision-making capacity regarding surgery. The plaintiff appealed. The superior tribunal upheld the lower court’s ruling and further stated that it was not the place of the court to override the decision of a medical board where there existed a real possibility of severe mental and physical problems for the child. The plaintiff then sought remedy from the Constitutional Court.
The plaintiff’s child was identified as having both male and female genitalia, including both ovaries and testicles. The child was raised as and identified as a boy, but it was unclear if the child could naturally produce male hormones or had the potential to procreate as a man. The defendants had the child examined to confirm the possibility of genital-conforming surgery, but found that the child had more congenital and physical female attributes, including a fallopian tube that might be functional and possible excretion of female hormones. The defendants then referred the case to a medical board which concluded that surgery, in accord with the laws and jurisprudence of the Colombian Constitution, needed the fully informed consent of the child, which would not be possible before the age of 18.
Whether the defendants’ refusal to authorise and carry out genital-conforming surgery on the plaintiff’s five year-old child, because parental consent was insufficient under the law, undermined the child’s right to life and freedom of personal development.
Constitution of Colombia, Articles 11 (right to life) and 16 (right to free development of personality).
Sentencia SU-337/1999, Constitutional Court of Colombia, 1999 (holding that parents could not substitute their consent for that of their 8 year-old child, who was old enough to make informed and mature decisions regarding invasive gender conforming surgery).
Sentencia T-551/1999, Constitutional Court of Colombia, 1999 (finding parental consent invalid because parents had not been fully informed and because their consent was not repeated over a sustained period of time).
Reasoning of the Court
The Court discussed the clash between the constitutional right to autonomy and the rights of the beneficiary, specifically in cases involving children. It found that, in intersex cases involving surgery, the decision of the child was paramount, while the right of the parent to make decisions in a protective capacity was secondary.
The Court stressed the need to evaluate and consider each case individually, taking into account the distinct elements of each case when determining if the informed consent of a parent could be substituted for that of a minor. The information to be assessed included: “(i) the urgency of the treatment, (ii) the impact and/or risk of the treatment on the autonomy and future of the child, and (iii) the age and maturity of the child”. The 1999 case of Sentencia SU-337/1999 and Sentencia T-551/1999, which defined the circumstances in which parental consent could be substituted for that of the child, established the factors that need to be considered regarding consent for intersex children. If the child was under the age of 5, if the parents were informed, qualified, and consistent in their decision, and if the decision was in accord with respected and accredited medical board recommendations, surgery could be performed. The Court found that an array of medical personnel should be available to inform the parents of alternatives and risks, as well as the possible negative future impacts that surgery could have on the child. The Court also emphasised that therapists and social workers should be permanently available to assist both the parents and the child to reach their decisions.
If the child was five years or older, it became the right of that child to make the decision about his or her sexual identity if (i) the parent also consented, (ii) the child demonstrated an express desire to be a particular gender, and (iii) a respected and accredited medical board agreed with the decision. Further, both child and parents must be aware of the known risks, future consequences, and possible side effects. The Court indicated that the board’s role was to examine the child’s physical attributes but also to evaluate the mental state of child and parents. Specifically, the Court considered it important to ascertain whether the child truly identified with the gender desired by the parents. Older children also needed help and support from therapists and social workers. No time constraint should be imposed on the process of decision-making, to discuss alternatives, verify the parties’ mental state, and ascertain that parents and child were able to show consistent commitment to a chosen gender.
The Court required the defendants to form a medical team within forty-eight hours, consisting of surgeons, urologists, endocrinologists, paediatricians, psychiatrists, therapists, and social workers. This team would assist the child and the parents to understand the surgery and its implications, and would also perform exams, diagnostics, and evaluations, which they would explain and discuss with child and parents. If, after the parents and child had been fully informed of the medical findings, the complications and risks of surgery, and potential future issues as well as alternative medical and non-medical options, and providing the medical team agreed with their decision, the defendants were mandated to perform surgery within fifteen days. However, if the child’s decision did not match that of the parents, or the medical team did not agree with the decision of the child and parents, no surgery could be performed until the child was eighteen and able to make his or her own informed decision.
Sentencia T-912-08, Pedro v. Social Security et al., Constitutional Court of Colombia, Chamber of Revision – Spanish (full text of judgment in Spanish, PDF)