The Family Court case Re: Carla (Medical procedure) [2016] FamCA 7

The Family Court has recently published a decision on the sterilisation of a 5-year old child and, unfortunately, it reveals that:

earlier genital surgery that “enhanced” her genitals without Court approval was viewed without concern, and with no evidence of necessity. The idea of “enhancing” the genitals of an infant or young child is disturbing.
sterilisation was justified using old data on cancer risks, a stance criticised by clinicians contributing to a 2013 Senate inquiry on involuntary or coerced sterilisation.
the cited data in support of sterilisation actually calls for monitoring gonads, not removing them.
the material supporting sterilisation focuses extensively on gender stereotyping, neglecting to consider that parents and clinicians are heavily invested in the success of early genital surgeries and gender assignment. Those rationales should, anyway, be irrelevant and the interpolation of such diverse rationales was criticised by the 2013 Senate inquiry.
gender stereotyping includes attitudes towards Carla’s body and potential future sexuality.
the sterilisation was seen as within the power of parents to authorise, thus taking sterilisation, as well as genital “enhancing” surgeries, out of court oversight and out of public view. This is disturbing.
while the judgement studiously avoids mentioning the term “intersex”, the child’s rights should be protected from this discriminatory treatment by the Sex Discrimination Act, under provisions on ground of intersex status.
the complicity of court and medical systems, and absence of a contradictor, shows flaws in the Family Court’s approach to contentious medical cases.

The Family Court and clinicians have learnt nothing from the 2013 Senate inquiry and subsequent human rights statements. This is a case of violence committed by the state.

Case summary

The Australian Family Court has judged that a family can consent to the sterilisation of their child, aged 5, without Court authorisation in the case of Re: Carla (Medical procedure) [2016] FamCA 7 (20 January 2016), recently published. This is an analysis of that case; references in square brackets cite paragraphs in the judgement.

The child has 17 beta hydroxysteroid dehydrogenase 3 deficiency, XY sex chromosomes, and has been raised as a girl since birth. Two years before the court case, she was subjected to surgery euphemistically described in the case as having “enhanced the appearance of her female genitalia”[2]. These surgeries were a clitorectomy (“‘clitoral’ recession”) and labioplasty.[16]

Those surgeries were not the subject of the Court case, and were simply acknowledged as the child’s past history. The Court failed to question the extraordinary perceived need for a young child to have “enhanced” genitalia.

In supporting her sterilisation, the court engaged in gender stereotyping, commenting at length that she has:

“a range of interests/toys and colours, all of which were stereotypically female, for example, having pink curtains, a Barbie bedspread and campervan, necklaces, lip gloss and ‘fairy stations’… She happily wore a floral skirt and shirt with glittery sandals and Minnie Mouse underwear and had her long blond hair tied in braid…”[15]

The Court failed to acknowledge that both parents and clinicians are heavily invested in the success of her “genital enhancement” and gender assignment, and assessments of her identity risk confirmation bias.

Further, such assessments are irrelevant in assessing the necessity of sterilisation. In 2013, the Australian Senate conducted an inquiry into involuntary or coerced sterilisation, devoting a chapter of a report on the involuntary or coerced sterilisation of intersex people to cancer risks, commenting:

“4.39 The committee is aware of a risk, not directly discussed by witnesses to the inquiry, that clinical intervention pathways stated to be based on probabilities of cancer risk may be encapsulating treatment decisions based on other factors, such as the desire to conduct normalising surgery… Treating cancer may be regarded as unambiguously therapeutic treatment, while normalising surgery may not. Thus basing a decision on cancer risk might avoid the need for court oversight in a way that a decision based on other factors might not. The committee is disturbed by the possible implications of this.” (pp.91-92)

This case appears to be intended to test that requirement and it is unfortunate that the Court failed to provide proper oversight. University of New England lecturer Aileen Kennedy, writing in the UNSW Law Journal in July this year, stated:

“There is complicity between the medical and the legal construction of variations of sex development as pathological disorders in urgent need of correction. The tension between the medical and judicial responses to variations of sex development has disappeared.” (p.834)

Further, clinicians in the case cited old data on cancer risks, contrary to guidance in the Senate report, and the cited data (Hughes et al) actually recommends the action of “monitoring” gonads, not removing them. Without better evidence, this is simply a case of state-sponsored violence.

Screenshot: Hughes et al (2005) page 558.

Clinicians claimed that it would be: “less psychologically traumatic for Carla if it is performed before she is able to understand the nature of the procedure”[30] Nevertheless, she is going to have a childhood of genital examinations, and a lifetime of hormone replacement. Further genital surgeries are also possible.

While both the 2005/2006 statement by Hughes et al and its 2016 update (Lee et al) are conflicted documents, the 2016 Global DSD Update authors have been obliged to acknowledge a lack of evidence for surgical management:

There is still no consensual attitude regarding indications, timing, procedure and evaluation of outcome of DSD surgery. The levels of evidence of responses given by the experts are low … Timing, choice of the individual and irreversibility of surgical procedures are sources of concerns. There is no evidence regarding the impact of surgically treated or non-treated DSDs during childhood for the individual, the parents, society or the risk of stigmatization.

The UN Committee against Torture, Committee on the Rights of the Child and Committee on the Rights of Persons with Disabilities and other bodies recently called for an end to such interventions, reparations and the holding to account of those responsible.

States must, as a matter of urgency, prohibit medically unnecessary surgery and procedures on intersex children. They must uphold the autonomy of intersex adults and children and their rights to health, to physical and mental integrity, to live free from violence and harmful practices and to be free from torture and ill-treatment. Intersex children and their parents should be provided with support and counselling, including from peers. Intersex children and adults should be the only ones who decide whether they wish to modify the appearance of their own bodies – in the case of children, when they are old or mature enough to make an informed decision for themselves… States should investigate human rights violations against intersex people, hold those found guilty of perpetrating such violations accountable and provide intersex people subjected to abuse with redress and compensation.

The judge in this matter is Colin Forrest, who sits in Brisbane, Queensland.

References

Kennedy, Aileen. 2016. ‘Fixed at Birth: Medical and Legal Erasures of Intersex Variations’. UNSW Law Journal 39 (2): 813–42.

Australian Senate, Community Affairs References Committee. Involuntary or coerced sterilisation of intersex people in Australia. Canberra: Community Affairs References Committee; 2013.

Family Court of Australia. Re: Carla (Medical procedure) [2016] FamCA 7 (20 January 2016).

Hughes, I A, C Houk, S F Ahmed, P A Lee, and LWPES/ESPE Consensus Group. 2006. ‘Consensus Statement on Management of Intersex Disorders’. Archives of Disease in Childhood 91 (April): 554–63.

Lee, Peter A., Anna Nordenström, Christopher P. Houk, S. Faisal Ahmed, Richard Auchus, Arlene Baratz, Katharine Baratz Dalke, et al. 2016. ‘Global Disorders of Sex Development Update since 2006: Perceptions, Approach and Care’. Hormone Research in Paediatrics 85 (3): 158–180.

United Nations. Intersex Awareness Day – Wednesday 26 October. End violence and harmful medical practices on intersex children and adults, UN and regional experts urge. Geneva, Office of the High Commissioner for Human Rights; 24 October 2016.

Scholarly papers since published on this case

Carpenter, Morgan. 2018. ‘The “Normalization” of Intersex Bodies and “Othering” of Intersex Identities in Australia’. Journal of Bioethical Inquiry 15 (4): 487–95. https://doi.org/10.1007/s11673-018-9855-8

Carpenter, Morgan. 2018. ‘Intersex Variations, Human Rights, and the International Classification of Diseases’. Health and Human Rights 20 (2): 205–14. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6293350/

Carpenter, Morgan. 2018. ‘The “Normalisation” of Intersex Bodies and “Othering” of Intersex Identities’. In The Legal Status of Intersex Persons, edited by Jens Scherpe, Anatol Dutta, and Tobias Helms, 445–514. Cambridge, England: Intersentia. https://doi.org/10.1017/9781780687704.028

Jones, Melinda. 2018. ‘Children’s Health Rights and Gender Issues’. Children’s Rights in Health Care, November, 382–424. https://doi.org/10.1163/9789004327573_017.

Kelly, Fiona, and Malcolm K Smith. 2017. ‘Should Court Authorisation Be Required for Surgery on Intersex Children? A Critique of the Family Court Decision in Re Carla — (2017) 31 AJFL 118’. Australian Journal of Family Law 31 (2): 118–33.

Richards, Bernadette, and Thaddeus Mason Pope. 2017. ‘Stretching the Boundaries of Parental Responsibility and New Legal Guidelines for Determination of Brain Death’. Journal of Bioethical Inquiry, August. https://doi.org/10.1007/s11673-017-9803-z

Richards, Bernadette J., and Travis Leal Couto Wisdom. 2019. ‘Re Carla: An Error in Judgment’. QUT Law Review 18 (2): 77–92. https://doi.org/10.5204/qutlr.v18i2.760