Rashad Rehman argues that a moratorium against intersex pediatric surgery would be harmful.

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With the National Post’s recent publication of Sharon Kirkey’s feature article “What if they guess wrong? Why surgeries to make intersex children look ‘normal’ are so controversial”, I reiterate my call for bioethicists to contribute conceptual clarity to discussions about surgery on children born with intersex conditions.

At first glance, Kirkey’s article seems like a balanced precis on how long-standing ethical problems concerning surgery on children born with intersex conditions could be addressed by Canadian legislation. Advocates for such legislation include Egale Canada and the Canadian Bar Association. Kirkey surveys the ethical challenges to the surgery, including the strong claims that such surgery amounts to mutilation, assault, or mistaken “guessing” of a person’s sex (all claims I have assessed elsewhere). However, Kirkey’s article underrepresents and excludes the medical community who care for those with intersex conditions and those with intersex conditions themselves, misunderstands the biology of intersex conditions, and mischaracterizes intersex pediatric surgery.

In terms of underrepresentation and exclusion of the medical community at large, as recently as 2017, and again in 2021, societies for pediatric urology have unanimously held that proposals for surgical moratoriums, or the criminalization of these surgeries, are antithetical to individualized, patient-centered care, and are not necessarily in the best interests of folk with intersex conditions.

Photo Credit: Wikimedia Commons. Image Description: Aluminum Winged Caduceus on a wall.

With respect to underrepresenting and excluding those with intersex conditions, Kirkey says “not all intersex people support an outright ban on early genital surgery”; however, she does not draw the inference that a moratorium would therefore not accurately reflect the wishes of those with intersex conditions. The long-term data we have, which includes the testimonies of 459 individuals with intersex conditions, “failed to support a general moratorium on early elective genital surgery.” Consequently, Canadian legislation for a moratorium or a ban would not accurately reflect, and consequently would wrongfully exclude, the testimony of folk with intersex conditions. 

Beyond harmful exclusion, Kirkey’s article demonstrates a pervasive failure to understand what an intersex condition is, and consequently what intersex pediatric surgery is. Kirkley classifies “intersex” as an umbrella term for “differences or variations in sexual development, or differences in sexual anatomy.” But intersex conditions are only one kind of disorder/difference of sexual development that biological males and females have. Examples of other such disorders are young biological males with hypospadias, and young biological females with urogenital sinus. These are not intersex conditions.

A larger ethical point is that Kirkey draws the inference from intersex pediatric surgery being “medically unnecessary” to being able to delay the surgery in order to wait for the child to become old enough to provide consent. However, this argument radically oversimplifies the decision-making process in healthcare. No option, surgical or non-surgical, is without significant, life-altering consequences. Choosing against surgery is just as much a choice in need of justification as choosing the surgery – especially if intersex conditions are medical disorders. Similarly, framing the discussion as a problem of autonomy and self-determination, of being “mature enough to participate meaningfully in any decision” relies on a one-sided view of the need for autonomy. If the child’s autonomous consent would be desirable prior to intersex pediatric surgery, this consent would also be desirable for the decision to go without the surgery. As the study which included hundreds of folk with intersex conditions concluded, “instead of promoting a polarizing moratorium, more efforts should be invested in improving information on long-term outcomes, informed consent and assent, and contact with support groups.” 

While I share Kirkey’s concerns with improving the lives of those with intersex conditions, a surgical moratorium would be harmful – predicated upon a misunderstanding of intersex conditions and intersex pediatric surgery. Legislation prohibiting this surgery would go against patient-centered, individualized care, and would wrongfully exclude the testimony of folk with intersex conditions.

By way of conclusion, though the federal government promised to open the question of criminalizing intersex pediatric surgery to public consultation but has thus far failed to do so, what matters more is the pressure to put social change before a more careful, evaluative analysis of the proposed change itself. In sum, Canada is unprepared for legislation for or against intersex pediatric surgery. My suspicion is that, in Canada’s current cultural milieu, it never will be prepared.

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Rashad Rehman is assistant professor of philosophy at Franciscan University of Steubenville, Ohio.