Medical malpractice can be an extremely heart-wrenching area of the law because of the deep trust patients put in doctors and the severity of the outcomes when those doctors are negligent. It is never more heartbreaking than when the victim of healthcare provider error is a child. Birth injury and pediatric errors are all too common in our medical system. Another rarer type of malpractice has to do with how hospitals handle the situation where a child is born intersex.
What is it to be Born “Intersex”?
According to the Intersex Society of North America, the term “intersex” is a “general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male.” You may be more familiar with the term “hermaphrodite.” Hermaphrodite is a term that is used to describe non-human animals who are born with both sets of genitalia, and in previous generations the term was also commonly applied to people born visibly intersex, but use of that term to describe people is now considered inappropriate or even offensive. It is estimated that one out of every 2,000 children are born visibly intersex. However, in some cases a child’s intersex condition does not become known until the child goes through puberty.
South Carolina Family Sues Over Treatment of Intersexed Child
Doctors treating intersex children handle the condition in different ways. Historically a common practice was to surgically alter the child’s genitalia in order to match expectations, and sometimes this is still done. This strategy can create serious emotional and physical problems for the child in some cases. In a South Carolina case, a family is suing for medical malpractice due to a doctor’s decision to remove their child’s penis.
The Post and Courier reports that in the lawsuit, adoptive parents are suing physicians and the state’s child welfare agency claiming that the doctors performed unnecessary sex assignment surgery on their child when the child was 16 months old which involved removing the child’s penis. Their child was born with both male and female reproductive organs.
The adoptive parents argue that their child should have been allowed to identify his or her own gender before any surgery was done, if any surgery were ever in fact done. They argue that the surgery was not medically necessary. The child’s situation is further complicated because the adoptive parents argue that the child now identifies as a boy, but because of the surgery he has female genitalia only. He lives as a boy and even had his name changed at age seven. He is now ten years old. While similar lawsuits have been filed and settled across the country, this may be the first such lawsuit to go to trial, if it proceeds as expected. While historically the existence of intersex children was not widely known as it was often hidden by families due to stigma, as society becomes more open regarding gender identity, doctors may become less likely to rush into gender assignment surgery before a children’s gender identity is even known.
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