Copyright (c) 2001 Yale Law & Policy Review

                            Yale Law & Policy Review




                            19 Yale L. & Pol'y Rev. 469


LENGTH: 12391 words


NOTE: "First, Do No Harm" - The Fiction of Legal Parental Consent to

Genital-Normalizing Surgery on Intersexed Infants


Kishka-Kamari Ford+



 + Yale Law School, J.D. 2001.





   Medical professionals recognize the Latin mantra Primum, non nocere, "First,

do no harm," as the first principle of medicine. n1 Yet, between one hundred and

two hundred times a year in America, n2 pediatric surgeons do harm when they

surgically "correct" the ambiguous genitalia of intersexed infants. These

surgeries, which I call "genital-normalizing surgeries," are unjustifiably

performed on an emergency basis and supported only by questionable science.


   For at least two intersex conditions - clitoromegaly (large clitoris) and

micropenis (small penis) - both the diagnosis of the condition and the ultimate

result of the surgery are based on subjective notions of what doctors, parents,

and society believe to be "normal-looking" genitals. The benefits of

genital-normalizing surgery have yet to be documented. The physically and

psychologically harmful effects have been all but ignored despite the outraged

cries of the procedures' victims.


   This Note exposes these surgeries as lacking legally necessary informed

consent. Part I provides background information about the current medical

diagnosis and treatment of intersexed infants in America. The scientific roots

of the current model of treatment of intersexed infants are identified, and its

principle assertions are critiqued. Part II reviews the doctrine of informed

consent to medical treatment and considers whether the emergency exception to

this doctrine can reasonably be applied to the birth of an intersexed infant.

After consideration of the emergency exception to the general requirement of

informed consent, this section discusses the legal fiction of parental consent

to medical treatment for minor children. Part III analyzes the current model of

treatment of intersexed infants to determine whether or not it can fairly be

characterized as "experimental" treatment and thus outside of the bounds of that

to which the parents of an intersexed infant can legally consent.




   I. The Diagnosis and Treatment of Intersexed Infants


                                                                          PAGE 2

                       19 Yale L. & Pol'y Rev. 469, *470


 Those born with genitalia displaying characteristics of both the male and

female genders (so-called "ambiguous" genitalia) are commonly referred to as

"intersexed." n3 Despite the secrecy surrounding the diagnosis and treatment of

intersexuality, the birth of an intersexed infant is actually a frequent

occurrence. Although an accurate quantification of the frequency of

intersexuality is very much dependent upon the physician's subjective

determination of what counts as "ambiguous" in the appearance of an infant's

genitalia, n4 most experts conservatively estimate that 1 in 2,000 babies born

alive in America have ambiguous genitalia. n5 The American Association of

Pediatrics concurs that ambiguous genitalia rank among the "common childhood

problems." n6


   A medical diagnosis of most intersex conditions is characterized by a

newborn's visibly ambiguous genitalia and focuses on the size, shape, and

cosmetic appearance of the organ that usually develops into a clitoris for girls

or a penis for boys. n7 Examples of such conditions are "clitoromegaly," "

micropenis," and "hypospadias." Some conditions can be clearly diagnosed. For

example, hypospadias is plainly characterized by a urethral meatus (opening of

the urethra) which is located somewhere along the shaft of the penis instead of

at its usual location on the tip. n8 Other conditions are less distinct. For

example, clitoromegaly is defined as the occurrence of an "abnormally large"

clitoris on an infant girl, while micropenis is defined as the occurrence of an

"abnormally small" penis on an infant boy.


   The Current Model of Treatment of Intersexed Infants


 Clitoromegaly and micropenis are almost always diagnosed at birth and  [*471]

immediately addressed with surgery. n9 The model of treatment of intersexed

infants was established a half-century ago by Johns Hopkins Sexologist John

Money and his colleagues. n10 This treatment model, which is currently upheld as

the official policy of the American Academy of Pediatrics, n11 is grounded in

two principle assertions. First, that because infants are born psychosexually

neutral at birth, they can be transformed into either gender as long as their

sexual anatomy can be surgically altered before the age of two to believably

conform to that gender. n12 Secondly, that "normal-looking" genitals are

critical for an infant's healthy psychosexual development. n13 These two

assertions are mutually dependent to the extent that performance of

genital-normalizing surgery to establish the second assertion depends upon the

truth of the first assertion. In line with these two assertions, the birth of an

intersexed infant is treated as an emergency requiring immediate gender

assignment and genital-normalizing surgery. n14


   Doctors employ a disturbingly unscientific methodology to assign a gender to

an infant with micropenis or clitoromegaly. In following John Money's theory

that "the presence or absence of the penis [is] the critical anatomical factor,"

n15 this methodology focuses on the size of the infant's phallus. The assignment

of gender for infants with micropenis or clitoromegaly is made with two more

principle assertions in mind. First, genetic males (those with XY genes) must

have adequately-sized penises and no vagina if they are to be assigned the male

gender. n16 Secondly, genetic females (those with XX genes) should always be

assigned to the female gender and surgically altered to look as much like normal

girls as possible (that is, without abnormally large clitorises). n17 A genetic

male newborn's penis is currently deemed "adequate" if it is no less than 2.5

centimeters long when stretched. n18 A genetic female's clitoris is deemed "too

large" if it exceeds 1.0 centimeter at birth. n19 According to Alice Domurat

                                                                          PAGE 3

                       19 Yale L. & Pol'y Rev. 469, *471


Dreger, author of "Ambiguous Sex" - or Ambivalent Medicine? Ethical Issues in

the Treatment of Intersexuality, "surgeons seem to demand far more for a penis

to count as "successful' than for a vagina to count as such." n20 The default

gender is therefore always female because it is the easiest gender  [*472]  to

create surgically. Domurat Dreger finds that "for a constructed vagina to be

considered acceptable by surgeons specializing in intersexuality, it basically

just has to be a hole big enough to fit a typical-sized penis. It is not

required to be self-lubricating or even to be at all sensitive." n21


   The principle assertions that dictate genital-normalizing surgery lack a

proper scientific foundation. Even the case on which John Money and his

colleagues rely to justify current gender-normalizing practices is of ambiguous

result. The test subject of that case, often referred to as the "John/Joan"

case, n22 has recently come forward to challenge the apparent success of the



   The John/Joan case was the story of David Reimer ("John"), one of a set of

infant male twins whose penis was severely burned beyond repair during

circumcision. Faced with the tragic destruction of their infant boy's penis,

John's parents sought the advice of John Money. Money recommended that John be

surgically reassigned and reconstructed as a baby girl. This decision was

motivated by the fear that, as a man without a penis, "[John] will be unable to

consummate marriage or have normal heterosexual relations; he will have to

recognize that he is incomplete, physically defective, and that he must live

apart." n23 Doctors "completed" John by removing his traumatized penis,

fashioning a vulva out of his scrotum, and sending him home as "Joan."


   John Money followed Joan's progress over a period of years and eventually

concluded that "[Joan's] record to date offers convincing evidence that the

gender identity gate is open at birth for a normal child no less than for one

born with unfinished sex organs... and that it stays open at least for something

over a year after birth." n24 The "successful" John to Joan sex re-assignment

was hailed for decades as proof that nurture, rather than nature, defines a

person's sexual identity such that any infant can be surgically altered to fit

either gender as long as surgery is performed early. n25 But recently, the real

outcome of John Money's experiment was revealed by John himself.


   In 1994, Milton Diamond, Professor of Anatomy and Reproductive Biology,

re-opened the John/Joan case and interviewed John about his experiences as

"Joan." n26 Milton Diamond reports that John is now in his thirties, living as a

man, and married to a woman whose children he adopted (having himself been

rendered infertile by the surgical removal of his testicles). n27 He agreed to

[*473]  speak to Milton Diamond because he "strongly desires his case history be

made available to the medical community to reduce the likelihood of others

having his psychic trauma." n28


   John and his mother report that Joan rejected the assigned female gender

almost immediately. n29 John's mother even remembers Joan trying to tear off her

dress on the way home from surgery - "I think he knew it was a dress and that it

was for girls and he wasn't a girl." n30 His parents report that they are "guilt

ridden" about having subjected their son to this experiment. n31


   Milton Diamond reports that "Joan's realization that she was not a girl

jelled between ages 9 and 11 years." n32 Joan remembers saving her allowance to

secretly buy toys typically associated with boys and often trying to stand to

                                                                          PAGE 4

                       19 Yale L. & Pol'y Rev. 469, *473


urinate despite the absence of a penis. n33 By the age of twelve Joan often

refused to take the female hormones prescribed to help develop a female body.

n34 She was appalled by her development of breasts and adamantly refused to wear

a bra. n35 She was repeatedly terrorized by female schoolmates both for her

masculine-appearance and tomboyish mannerisms. n36


   By age 14, Joan demanded answers of her father and was finally made aware of

the gender reassignment. John remembers that after that conversation "all of a

sudden everything clicked. For the first time things made sense and I understood

who and what I was." n37 Joan immediately reclaimed the male gender and became

John again. From age 14 until the present, John has experienced a long, hard

course of male hormonal treatments, mastectomies, and penile reconstruction

surgeries. His mutilated genitals still appear far from normal and are barely

functional, yet John feels every bit a man. His final recollections on his

experience are profound:



   Doctor ... said, it's gonna be tough, you're going to be picked on, you're

going to be very alone, you're not gonna find anybody unless you have vaginal

surgery and live as a female. And I thought to myself, you know I wasn't very

old at the time but it dawned on me that these people gotta be pretty shallow if

that's the only thing they think I've got going for me; that the only reason why

people get married and have children and have a productive life is because of

what they have between their legs ... If that's all they think of me, that they

justify my worth by what I have between my legs, then I gotta be a complete

loser. n38


 John Money's "proof" of his theories about the flexibility of gender was

[*474]  based only on the feigned success of the John/Joan case. n39

Furthermore, John Money was virtually the only scientist to put forth any

guidelines for the management of the intersexed. n40 Milton Diamond has

concluded after his reopening of the John/Joan case that "there is no support

for the postulates that individuals are psychosexually neutral at birth or that

healthy psychosexual development is dependent upon the appearance of the

genitals." n41 David Reimer's broken silence proves that "Money's hypothesis

remains a mere hypothesis to this day." n42


   Because those who follow John Money's model of treatment still regard the

birth of an intersexed child as a medical emergency, American courts have never

considered the requirement of legal consent in genital-normalizing surgery. n43

The classification of genital-normalizing surgery as an emergency is a mistake

and has resulted in disastrous outcomes. No data has supported the contention

that such surgery is beneficial. On the contrary, available evidence reveals

that genital-normalizing surgery causes substantial and unreasonable harm to

infant subjects. Furthermore, an analysis of the questionable theoretical bases

for the current model of treatment and the coercive behavior of surgeons who

recommend genital-normalizing surgery reveals that the parents of intersexed

infants are impeded from giving legal informed consent on their behalf.


   II. The Doctrine of Informed Consent


 The doctrine of informed consent is based on the legal principle of battery,

which holds that an offense to personal dignity occurs when one violates

another's bodily integrity without full and valid consent. n44 Generally, if a

doctor obtains a patient's consent to medical treatment without informing that

                                                                          PAGE 5

                       19 Yale L. & Pol'y Rev. 469, *474


patient of the nature of the treatment or the extent of the harm that is

necessarily involved, the patient's consent is held not to be an "informed

consent." n45 Legal informed consent requires the satisfaction of three criteria

before a medical  [*475]  decision will be seen as legally informed. n46 First,

the decision must be informed. This requires the doctor to provide the patient

with adequate information about the proposed treatment, including its

alternatives. Second, the decision must be voluntary. This requires the doctor

to abstain from coercing or otherwise improperly influencing the patient's

decision. Third, the decision must be competent. This requires that the patient

"have an "appreciation' of the nature, extent, and probable consequence of the

conduct consented to." n47 By ensuring that the patient knowledgeably consents

to being treated by the clinician, the doctrine of informed consent serves both

to protect the patient's body from uninvited invasion and to protect the

clinician from unwanted tort liability.


   The Emergency Exception to the Requirement of Informed Consent


 When a doctor provides treatment necessary in a medical emergency, that

treatment is excepted from the general requirement of informed consent. n48 In

the celebrated case Schloendorff v. Society of New York Hospital, n49 Justice

Cardozo, writing for the majority, reasoned that the requirement of informed

consent is necessary "except in cases of emergency where the patient is

unconscious, and where it is necessary to operate before consent can be

obtained." n50 Since Schloendorff, courts in all jurisdictions have repeatedly

returned to Justice Cardozo's famous words and refused to find a person who

responds to a medical emergency in violation of the law. n51


   Defining what exactly constitutes an "emergency" has been difficult. In

Dunham v. Wright, the Third Circuit struggled with what it described as the

"delicate balance between the right of the patient to choose the treatment he

wishes to undergo and the freedom of the physician to practice responsible and

progressive medicine without fear of frequent litigation." n52 However, two

criteria must be satisfied before a person who acts upon another person will be

said to have been responding to an emergency. First, that the person acted upon

is, or is reasonably believed to be, in immediate danger. n53 Second, that the

[*476]  actor has no reason to believe that the person acted on would have

declined the action if they had been able. n54 In the specific case of minors,

the second prong of the emergency response test is dropped and courts simply

define emergency action as action "appropriate to protect the "life or health of

the child.'" n55


   The practice of genital-normalizing surgery on infants does not pass either

prong of the emergency response test. First, there is nothing life-threatening

about a large clitoris or a small penis. In fact, it is conceded as medical fact

that the genitals of an intersexed infant "are not diseased and do not have to

be treated as pathological." n56 The intersexed infant is in no immediate danger

because of the size and shape of his/her penis or clitoris. In fact, the

intersexed infant is not even in future danger because of the size and shape of

his/her penis or clitoris. Secondly, recent advocacy by post-operative

intersexuals who resent the imposition of genital-normalizing surgery on them as

infants reveals that many post-operative intersexuals would have declined the

action if they were able. n57


   Despite the fact that intersexuality is not a life-threatening disorder,

medical professionals have continued to treat it as an emergency by focusing not

                                                                          PAGE 6

                       19 Yale L. & Pol'y Rev. 469, *476


on the physical dangers of ambiguous genitalia but on the psychosocial problem

of intersexuality. Unfortunately, this focus is misguided.


   Science rebuts the contention of John Money and his followers that

"normal-looking" genitals are critical for an infant's healthy psychosexual

development. Research shows that most children under the age of two display no

concern about differences in the size and shape of their own genitals.

Pediatrician Janet Goodall's studies of children under the age of two reveals

that "their approach to life is totally egocentric." n58 She concludes that

"children are more involved in their own internal world than in making more than

superficially disparaging comparisons, such as something's being bigger or

smaller than is desirable." Given that genital-normalizing surgery can be

performed at any time in a person's life, and in fact may have better physical

results if performed  [*477]  only after the genitals are fully grown, n59 it is

difficult to justify immediate surgery to the infant on the basis of medical



   It is my contention that it is the parents and doctors of intersexed infants

who are experiencing a medical emergency, not the intersexed infant. Intersexed

genitalia make almost everyone - doctors, parents, and society as a whole -

uncomfortable. The terms "disfiguring and embarrassing," "ungainly,"

"unsightly," and "offensive" are commonly found in medical journals when

describing ambiguous genitalia. n60 In fact, medical professionals admit that it

is the psychosocial problem of intersex that makes it an emergency. n61 Doctors

act quickly not because the infant is in any medical danger, but "to spare

parents the trauma of seeing their child as intersexed each time they change the

infant's diaper." n62


   The psychosocial emergency surrounding the birth of an intersexed infant is

"cultural imperative, masquerading as medical necessity." n63 As such, the

practice of genital-normalizing surgery on infants does not pass the test for

medical emergency. A medical emergency requires that the action is appropriate

to protect the life and health of the child, not the psychological welfare of

the child's parents or physicians. Because the birth of an intersexed infant

does not qualify as a medical emergency, doctors can perform genital-normalizing

surgery only with the informed consent of an infant's parents.


   Parental Consent to the Medical Treatment of Their Minor Children


 The underlying principles of informed consent break down when the medical

treatment of infants is at issue. Infants' underdeveloped communication and

comprehension abilities preclude appreciation of the nature, extent, and

probable consequences of a proposed treatment. Nor can they weigh its

alternatives. Therefore, infants are literally unable to give legal informed

consent for their own medical treatment. n64 So who speaks for the infant?


   The infant's impediment to the traditional rule of informed consent has

[*478]  been overcome by the creation of the legal fiction that a parent's

informed consent may be taken in place of the infant's. This legal fiction is

the doctrine of substituted judgement. With its history in the nineteenth

century English law of lunacy, n65 the doctrine of substituted judgement

purports to allow a third party to advocate a course of action for one

incompetent to speak for him or herself. Although the doctrine of substituted

judgement has been revised over time, n66 it still assumes that the third party

is legally able to advocate what is in the incompetent's best interests. n67

                                                                          PAGE 7

                       19 Yale L. & Pol'y Rev. 469, *478



   The doctrine of parental consent goes even one step further than the doctrine

of its roots. It does not just assume, but actually takes as fact that the

parent knows what is in the best interests of the infant. Time and again, courts

have upheld parental consent on the basis that parents, as the natural guardians

of their children, are best situated and best able to make important decisions

on their behalf. n68 Herein lies the danger of parental consent.


   Louise Harmon discusses the various concerns about substitute judgement in

her article Falling Off the Vine: Legal Fictions and the Doctrine of Substituted

Judgement. n69 She finds that legal fictions become dangerous when understanding

of the inherent falsity of the statement is lost and those who are substituting

their judgement are seen as truly speaking for that person. n70 Richard W.

Garnett, in his article Why Informed Consent? Human Experimentation and the

Ethics of Autonomy, echoes these concerns by arguing that ""proxy consent' is an

oxymoron if consent truly aims at protecting self-autonomy and

self-determination." n71 Even the American Academy of Pediatrics recognizes this

danger, finding that ""proxy consent' poses serious problems for pediatric

health care providers" because "a person who consents responds based on unique

personal beliefs, values, and goals." n72


   Despite the dangers inherent in the falsity of the legal fiction, in a

variety of contexts courts have continued to rely on the presumption that

parents know what is best for their infant and should be trusted to act on that

knowledge. n73 It  [*479]  is currently generally accepted at common law that

the informed consent of the parent is necessary for the medical treatment of the

infant. n74 A fair characterization of the breadth of the parental consent

doctrine is that "most courts ... defer to parental discretion within a broad

spectrum of situations ranging from those which are medically necessary, to

those which do not threaten the health of the child." n75


   But, a parent's prerogative to consent on behalf of his or her infant is not

absolute. Rather, when the child's health and safety are at risk, the Court has

placed limitations on the use of parental discretion. For example, in Prince v.

Massachusetts, n76 the Supreme Court did not hesitate to convict a child's

guardian for breaking child labor laws and endangering the child's health and

welfare, even though the decision abridged the guardian's religious freedom. It

was in Prince that the now famous words were first declared: "Parents may be

free to become martyrs themselves. But it does not follow they are free, in

identical circumstances, to make martyrs of their children." n77 The courts have

continually returned to this argument in Prince when a parent's discretionary

decision has threatened the child's health and welfare. n78 Even in cases where

the parent's discretionary decision has been upheld, courts have been careful to

consider whether the parent's decision is really in the best interests of the

child. n79


   III. Analysis of the Current Model of Treatment of Intersexed Infants


 The question of what is in the best interests of the child is most often

implicated when the proposed medical treatment may be fairly characterized as

"experimental." The definition of "experimental" treatment is revealed by

reviewing cases brought by parents seeking court approval for their minor or

[*480]  mentally incompetent children to become live organ donors. n80 A study

of the case law in this context reveals the criteria by which courts judge a

treatment to be experimental.

                                                                          PAGE 8

                       19 Yale L. & Pol'y Rev. 469, *480



   In the landmark case Bonner v. Moran, n81 the D.C. Circuit plainly

articulated the first criteria that must be satisfied before legal consent can

be given for a minor to participate in experimental treatment. Although Bonner

concerned the mature minor exception to the doctrine of parental consent, the

court also discussed at length the performance of experimental treatment of

minors. The issue in Bonner was whether a doctor had acted with legal consent

when he removed skin from a fifteen-year-old boy for the purpose of treating the

boy's badly burned cousin. n82 At issue was the nature of the procedures to

which the doctor subjected the minor organ donor. Over the course of two months,

during which the boy missed school, the doctor removed a tube of the boy's skin

from his arm to his waist and gave him several blood transfusions. n83 The court

noted the great degree of pain and sacrifice suffered by the boy and ultimately

held that consent given by a minor or on the minor's behalf is invalid when the

treatment is not to the benefit of the child. n84 It is important to note that

because the surgery was not for the benefit of the minor, the court demanded

both the consent of the child and his parents n85 Similar to the reasoning in

Prince, in the context of organ donation, an adult is free to make a martyr of

herself but not of her child.


   The requirement of a benefit to the child is supported by other cases in the

organ donation context. For instance, in both Hart v. Brown n86and Strunk v.

Strunk, n87 courts allowed legally incompetent persons to be organ donors with

parental consent only after an independent benefit to these donors could be

established. In Hart, the Superior Court of Connecticut upheld parental consent

to a seven year-old girl's donation of a kidney to her twin sister. n88 After

hearing from the donee's doctors, psychiatrists, clergyman, and court-appointed

guardian ad litem, the court was convinced that the organ donor  [*481]  would

be less harmed by the loss of her kidney than by the loss of her sister. n89 The

court was also careful to make "a close, independent and objective investigation

of [the parents'] motivation and reasoning." n90 After a careful balancing of

all of the interests and risks involved, the court made what it believed to be a

beneficial decision for the organ donor. Similarly, in Strunk, the Court of

Appeals of Kentucky upheld parental consent for a twenty-seven-year-old

mentally-disabled man to donate a kidney to his brother once it was reasoned

that he would be more traumatized at the loss of his brother than at the loss of

his kidney. n91 Important to both decisions were the facts that kidney donation

is a relatively safe procedure and that a person's life expectancy is not

diminished with the removal of one kidney. n92


   Conversely, the courts have refused to allow parental consent to organ

donation by their legally incompetent children when no independent benefit to

the organ donor can be established. For instance, in In re Richardson, n93 the

Louisiana Court of Appeals found the proposed psychological benefit to a

mentally disabled organ donor "highly speculative." n94 In In re Richardson, the

parents of Roy, a seventeen-year-old mentally disabled boy, sought to give

parental consent for one of Roy's kidneys to be removed and placed into his

thirty-two-year-old sister. n95 The parents' attorney argued that donating his

kidney would be in Roy's best interest because his sister might then live long

enough to take care of Roy when they died. n96 The court refused to see this

speculative possibility as a clear benefit to Roy and declined to allow the

organ transplant. n97 The Wisconsin Supreme Court reached a similar conclusion

in In re Guardianship of Pescinski n98and refused to allow an organ donation by

an incompetent donor to proceed "in the absence of real consent on his part, and

in a situation where no benefit to him has been established." n99

                                                                          PAGE 9

                       19 Yale L. & Pol'y Rev. 469, *481



   From the study of cases in the organ donation context, it becomes apparent

that in addition to the basic requirements of legal informed consent, certain

criteria must be satisfied before a parent may submit their minor to an

experimental treatment. First, if the treatment is not medically necessary for

the minor, it must not be unreasonably harmful. Second, the treatment must be to

the benefit of the minor, and not just to the benefit of the minor's parents or

other family members. The best interests of the minor are at the forefront of

the decision  [*482]  to permit or deny an experimental treatment. With these

criteria in mind, the arguments against allowing parental consent to

genital-normalizing surgery on their otherwise healthy intersexed infant are



   The Experimental Nature of the Current Model of Treatment of Intersexed



 The current model of treatment for healthy infants with micropenis or

clitoromegaly is experimental at best. n100 Part I of this Note revealed the

questionable empirical support for imposing immediate genital-normalizing

surgery on intersexed infants. This lack of reliable empirical support has led

experts in infant surgery, psychology, and ethics, as well as intersexuals

themselves, to loudly question why genital-normalizing surgery continues to be

imposed on intersexed infants. This same sentiment was articulated by Robert A.

Crouch in a volume of The Journal of Clinical Ethics entirely devoted to this

issue: "Treatment decisions for intersexed children have not been made on a

"firm scientific basis,' yet they have been made nonetheless." n101


   Follow up studies are rarely conducted on infants subjected to

genital-normalizing surgery. n102 The few outcome studies that have been

completed address only the physical appearance of the post-operative genitals,

but not the psychological results for the patients. n103 This is odd considering

that the fundamental goal of genital-normalizing surgery is "to facilitate a

patient's positive psychosocial and psychosexual adjustment throughout life."



   There is, however, overwhelming evidence of the physical and psychological

effects of genital-normalizing surgery from post-operative intersexuals

themselves. The advent of the Internet has allowed post-operative intersexuals

to voice the negative consequences of genital-normalizing surgery and form

interest groups dedicated to preventing its harms to future intersexed infants.

n105  [*483]  These advocacy groups, with some support from those within the

medical profession, criticize surgeons for not according weight to patients'

reports of negative surgical and psychosocial outcomes. n106


   The collective stories of these intersexuals further corroborate evidence

that genital-normalizing surgery performed without the patient's own consent is

not beneficial. As noted by Bruce E. Wilson and William G. Reiner, experts in

pediatric medicine and psychiatry who have studied the current management of

intersex, "the recurring voices of many individuals treated in accordance with

[the current model] increasingly indicate that it just does not work the way it

is supposed to work." n107 Held to the legal standard applied to other forms of

experimental treatment on infants, the practice of genital-normalizing surgery

without the patient's consent fails both the general test for legal informed

consent and the more specific requirement of an independent benefit to the


                                                                         PAGE 10

                       19 Yale L. & Pol'y Rev. 469, *483



   The Unreasonably Harmful Results of Genital-Normalizing Surgery on Infants


 An experimental treatment requires an independent benefit to the infant. Yet,

recent scholarship reveals that, for many intersexuals, genital-normalizing

surgery has resulted in deformed looking genitalia, pain, and loss of sexual

sensitivity or function. Tragically, most of the long term physical injuries

that result from genital-normalizing surgery cannot be evaluated until the

infant reaches sexual maturity and discovers problems of pain or insensitivity

at sexual arousal. n108 But most patients are lost to follow up long before they

even reach puberty.


   Genital-normalizing surgery rarely results in "normal looking" genitalia.

Cheryl Chase, Executive Director of the Intersex Society of North America,

argues that "surgery is good at removing structures, like infected appendices or

localized tumors; it is much less useful for creating structures." n109 For

example, clitoromegaly is consistently addressed by removing all, or a

significant part, of an infant's clitoris. n110 To argue that a woman with no

clitoris at all has "normal" genitalia is ludicrous. And yet, "the definition of

a "successful' surgical result may well differ in the eyes of the surgeon and

the eyes of the patient." n111 Because surgeons consider the female anatomy to

play a passive role in sexuality, a sexual reassignment that results in a

functionally receptive  [*484]  vagina is considered successful, regardless of

the state of the clitoris. n112 The awful truth for many intersexuals is that

the deformation of post-surgery genitals is "a fact immediately obvious to

anyone who glances at the "after' photos claimed as successes." n113


   But even an aesthetically pleasing result may leave an intersexual in pain or

without sexual sensitivity. Edmund G. Howe, Professor of Psychiatry and Director

of Programs in Medical Ethics, finds that many post-operative intersexuals

"report that they have less sensation in their genital area and even feel pain."

n114 Wilson and Reiner agree that "many surgeries to "reconstruct' a "normal

sized' clitoris or penis result in decreased sensation and/or function." n115


   Even when genital-normalizing surgery results in aesthetically-pleasing and

functional genitals, there is always the possibility that surgeons were

altogether wrong about the future gender choice of the infant. For many

intersexed infants, genital-normalizing surgery seems to have been a guessing

game. Even when the physical results are "optimal," they are sometimes proven to

have been irreparably incorrect. David Reimer's rejection of his assigned gender

is not an isolated case. Many intersexuals end up developing sexual identities

opposite to their sexually-assigned gender, n116 reflecting the fact that, for

many people, and especially for intersexuals, "stable gender identity is often

assumed only as an adult." n117 Coping with this "gender dysphoria," as it is

termed in the medical community, n118 is very difficult for an intersexual whose

genitals of the sex with which they now identify were intentionally surgically

removed with their parents' consent.


   It is hard to discuss the practice of genital-normalizing surgery without

drawing an analogy to the practice of female genital mutilation. The American

Academy of Pediatrics' vehement condemnation of female genital mutilation seems

grotesquely hypocritical considering its strong endorsement of

genital-normalizing surgery. The following are official statements by the

American Academy of Pediatrics concerning the practice of female genital


                                                                         PAGE 11

                       19 Yale L. & Pol'y Rev. 469, *484



   "The World Health Organization and the International Federation of Gynecology

and Obstetrics have opposed FGM as a medically unnecessary practice with

serious, potentially life-threatening complications." n119


    [*485]  "The American Academy of Pediatrics ... encourages its members to

.. decline performing all medically unnecessary procedures to alter female

genitalia." n120


   And yet, the removal of all or part of the sexual organs of young girls done

in countries that practice female genital mutilation is functionally no

different from the surgical maneuvers performed in America to "correct"

clitoromegaly. n121 Cheryl Chase reports interviewing both Western and

third-world victims of clitorectomies and finding that "in both groups, some

women are deprived of clitoral sensation and orgasm; some retain sensation in

the clitoral stump; and some of these retain orgasmic response." n122 Beyond the

geographic location of the surgery performed, there seems little functional

difference between what is done by surgeons here and what they condemn



   Cheryl Chase adds that "poor surgical outcomes are not the only - or even the

primary - reason former patients feel harmed." n123 The psychological effects of

genital-normalizing surgery are perhaps the most painful of all. Alice Domurat

Dreger reports that the current model of treatment, "while designed to be

beneficent, appears in many cases to actually harm intersexed children and their

families by treating them as pathological." n124 Most intersexuals feel that

they would have been better left alone. "They contend that if they had not had

surgery, they could form just as meaningful intimate sexual relationships and

enjoy sexual sensations that would not have been diminished." n125


   In her study of forty-one intersexed people, sociologist Sharon E. Preves

noted that "many who had genital surgeries emphasized that the very operations

that were intended to assuage feelings of difference only served to highlight

their stigma." n126 After conducting in-depth interviews with these intersexuals

about their life histories, Sharon E. Preves found that none of those

interviewed would have preferred to have been born non-intersexed. n127 Dr.

Suzanne Kessler's survey of college students provides evidence that many

intersexed adults would not choose gender-normalizing surgery for themselves and

express regret and anger that surgery was imposed on them as children. n128

[*486]  Many intersexuals who were subjected to genital-normalizing surgery in

infancy have sought to reclaim their identity as intersexual rather than simply

male or female. n129


   In fact, studies have shown that those intersexuals who escaped

genital-normalizing surgery are living normal, healthy lives. Americans can

learn a lot from the treatment of intersexuals in other cultures. Robert A.

Crouch has found that "many non-Western societies have socially available

(institutionalized) third sex/third gender categories, where the differently

sexed person has a special (or, at least, acceptable) social gender role to

play." n130 Anthropological and anecdotal evidence reveal that intersexed

infants could be left as they are born and live normal, healthy lives. But in

America, "the non-treatment of intersexed children clearly has not been a real

option." n131


   In light of the relative lack of physical or psychological benefits of

                                                                         PAGE 12

                       19 Yale L. & Pol'y Rev. 469, *486


genital-normalizing surgery, it is not surprising to find that there is heated

controversy both within and without the medical community surrounding the

continued use of this current model of treatment. n132 Alice Domurat Dreger

reports that "professional conferences, gender clinics, and the popular media

are abuzz with the controversy over how medicine and society should handle

intersex and intersexuals." n133 Intersexual support groups have proliferated on

the Internet, n134 and the Discovery Channel recently carried a one-hour

documentary on the controversy over surgical treatment of intersexuality. n135


   The Impediments to Legal Parental Consent


 In the midst of all of the controversy surrounding the practice of

genital-normalizing surgery, parents of intersexed infants get lost. The

questionable theoretical bases for early genital-normalizing surgery are rarely,

if ever, disclosed to the parents of intersexed infants. n136 The failure of

this disclosure, amongst other deceptions by doctors who routinely advocate

early genital-normalizing surgery, make legal informed consent to this surgery

by parents impossible. The medical community's failure to acknowledge the

questionable  [*487]  theoretical bases for genital-normalizing surgery preclude

satisfaction of each of the three requirements for informed consent.


   Legal consent must be informed. This requires doctors to provide the parents

of intersexed infants with adequate information about the proposed

genital-normalizing surgery, including its alternatives. This information

"should include risks such as reduced sexual sensation, less than perfect

cosmetic results, and possible interferences with sexual function." n137 Also

included should be the risk that the infant ends up identifying with the other

gender as in the case of David Reimer. But, surgeons who practice

genital-normalizing surgery admit that "little factual evidence or long-term

outcome studies exist to guide choices." n138 Without the proper data, the

potential risks of genital-normalizing surgery cannot be communicated to the

parents of intersexed infants.


   Unfortunately, even when doctors have relevant information, they "often do

not tell intersexuals and their parents all that [they] know." n139 This leads

to the tainting of the second requirement for informed consent: that the

decision to give legal consent must be voluntary. Voluntariness of the decision

requires the doctor to guard against coercing or otherwise improperly

influencing the parents' decision. Yet, Alice Domurat Dreger reports that

"clinicians treating intersex individuals may be far more concerned with strict

definitions of genital normality than intersexuals, their parents, and their

acquaintances (including lovers)." n140 This obsession with "normalizing" the

infant may cause clinicians to inappropriately influence parents'

decision-making. Combined with negative social attitudes towards the intersexed,

the doctor's own opinions may be overwhelmingly coercive to parents. Since the

current model of treatment does not require doctors to recommend that parents

seek counseling by trained professionals, n141 unable to work through their

anxiety and guilt, parents are amenable to the quick fix to their problem that

they believe genital-normalizing surgery offers. Parents who are still grieving

over the loss of the "perfect" child they expected are especially vulnerable to

what the doctor believes is in their best interests. Coercion and improper

influence by doctors prevent the parents of intersexed infants from giving

voluntary consent to genital-normalizing surgery.


   The final requirement for valid legal consent is that it must be made by

                                                                         PAGE 13

                       19 Yale L. & Pol'y Rev. 469, *487


someone competent to make such a decision. This requires that the parents have

an appreciation of the nature, extent, and probable consequences of

genital-normalizing surgery. Yet, there is strong evidence that parents are not

competent  [*488]  to give consent to genital-normalizing surgery on behalf of

their intersexed infants. Edmund G. Howe, Professor of Psychiatry and Director

of Programs in Medical Ethics, finds that "when surgeons recommend surgery in

infancy, it may induce feelings of shame in the parents toward their child."

n142 The extreme stress of these circumstances combined with the fact that

surgeons recommend immediate action may cause parents to make impulse decisions

about whether to consent to genital-normalizing surgery. Even when parents are

given all relevant information by doctors, some experts argue that "many

families are so devastated during the initial phases of their child's evaluation

and treatment that they may not fully comprehend and absorb the information

presented to them." n143 Furthermore, "since parents cannot know whether their

intersexed child will benefit more from having surgery or not," n144 there is no

way to accurately weigh the possible consequences of genital-normalizing

surgery. The fact is that there is just not enough accurate information

available on the benefits or consequences of genital-normalizing surgery for

even the most well-meaning and contemplative parents to make truly informed

decisions for their infants.


   The current model of treatment for intersexed infants fails the test for

legal informed consent at every step. No matter how well-meaning their

intentions, parents are incapable of giving legal informed consent to the

performance of genital-normalizing surgery on their infants because the current

model of treatment does not offer these parents the tools that they need to come

to an informed, voluntary, competent decision.




 Surgeons who perform genetic normalizing surgery, whether on an emergency basis

or at the behest of the intersexed infant's parents, should be aware that,

because genital-normalizing surgery is not necessary nor proven beneficial for

the infant with clitoromegaly or micropenis, the required elements of legal

informed consent are likely to have not been met. In light of the questionable

scientific basis behind its use, the lack of follow-up data on its benefits, and

the overwhelming evidence of its negative physical and psychological results for

many intersexuals, a moratorium should be declared on the use of defenseless

infants as the experimental subjects of genital-normalizing surgery.






   n1. Michael Kowalski, Applying the "Two Schools of Thought" Doctrine to the

Repressed Memory Controversy, 19 J. Leg. Med. 503, 505 (1998) ("Primum non

nocere (first do no harm) is a phrase recognized as one of the most significant

admonitions from the Hippocratic Oath.").



   n2. Kenneth Kipnis & Milton Diamond, Pediatric Ethics and the Surgical

Assignment of Sex, 9 J. Clinical Ethics 398, 401 (1998).



   n3. Alice Domurat Dreger, A History of Intersexuality: From the Age of Gonads

                                                                         PAGE 14

                       19 Yale L. & Pol'y Rev. 469, *488


to the Age of Consent, 9 J. Clinical Ethics 345, 345 (1998) (""Hermaphroditism'

and "intersex' are blanket terms used to denote a variety of congenital

conditions in which a person has neither the standard male nor the standard

female anatomy.").



   n4. Id. ("Of course, what counts as "standard' male or female is open to

interpretation."); Alice Domurat Dreger, "Ambiguous Sex" - or Ambivalent

Medicine? Ethical Issues in the Treatment of Intersexuality, 28 Hastings Center

Rep. 24, 26 (1998) ("How small must a baby's penis be before it counts as




   n5. Anne Fausto-Sterling, Sexing the Body: Gender Politics and the

Construction of Sexuality (2000); Ruth G. Davis, Am I a Man or a Woman?,

Glamour, Apr. 2000, at 201, 202; Intersex Support Group International (ISGI),

Director's Page, at (visited Mar. 8, 2001) ("One

form or another of these conditions appears in approximately 1 in 2,000 live




   n6. Section on Urology, Am. Acad. of Pediatrics, Timing of Elective Surgery

on the Genitalia of Male Children with Particular Reference to the Risks,

Benefits, and Psychological Effects of Surgery and Anesthesia, 97 Pediatrics

590, 590 (1996).



   n7. See Domurat Dreger, supra note 4, at 27 ("The late twentieth century

medical approach to intersexuality is based essentially on an anatomically

strict psychosocial theory of gender identity.").



   n8. Intersex Soc'y of N. Am., Hypospadias: A Parent's Guide to Surgery, at (visited Mar. 31, 2000).



   n9. The birth of an intersexed infant is viewed by the medical community as

an "emergency" requiring immediate surgical attention. Robert A. Crouch, Betwixt

and Between: The Past and Future of Intersexuality, 9 J. Clinical Ethics 372,

372-73 (1998).



   n10. Id. at 373.



   n11. Section on Urology, Am. Acad. of Pediatrics, supra note 6, at 590.



   n12. Crouch, supra note 9, at 373.



   n13. Id..



   n14. Id. at 372-74.

                                                                         PAGE 15

                       19 Yale L. & Pol'y Rev. 469, *488




   n15. Kipnis & Diamond, supra note 2, at 399.



   n16. Domurat Dreger, supra note 4, at 26.



   n17. Id.



   n18. Id. at 28.



   n19. Id.



   n20. Id. at 29.



   n21. Id.



   n22. This summary of the John/Joan case draws upon John Money & A.A.

Ehrhardt, Man and Woman, Boy and Girl (1972); Kipnis & Diamond, supra note 2, at

398-402; and Domurat Dreger, supra note 4, at 24-25.



   n23. Kipnis & Diamond, supra note 2, at 399 (quoting an interview with the

psychiatrist who uttered these words in J. Colapinto, The True Story of

John/Joan, Rolling Stone, Dec. 1997, at 54-97).



   n24. John Money et. al., Sexual Signatures: On Being A Man or Woman 98




   n25. Domurat Dreger, supra note 4, at 25.



   n26. Milton Diamond & Keith Sigmundson, Sex Reassignment at Birth: Long-term

Review and Clinical Implications, 151 Archives of Pediatrics and Adolescent

Medicine 298-304 (1997).



   n27. Id.



   n28. Id. at 299.



   n29. Id.



   n30. Id. at 299.

                                                                         PAGE 16

                       19 Yale L. & Pol'y Rev. 469, *488




   n31. Id. at 303.



   n32. Id. at 299.



   n33. Id. at 299-300.



   n34. Id. at 300.



   n35. Id.



   n36. Id.



   n37. Id. at 300.



   n38. Id. at 301.



   n39. Kipnis & Diamond, supra note 2, at 400 ("Money's and Ehrardt's twin

study had only a single experimental subject and a single control.").



   n40. Suzanne Kessler, Lessons from the Intersexed 136 n.10 (1998) ("Almost

all of the published literature on intersexed infant case management has been

written or co-written by one researcher, John Money.").



   n41. Diamond & Sigmundson, supra note 26, at 303.



   n42. Crouch, supra note 9, at 374.



   n43. The issue of whether or not genital normalizing surgery on infants is

performed with legal informed consent has never been presented to the American

courts. It has, however, been recently decided in the negative by the

Constitutional Court of Colombia. A summary of the court's holding can be found




   n44. Charles Fried, Medical Experimentation: Personal Integrity and Social

Policy 14 (1974).



   n45. Lois A. Weithorn, Children's Capacities in Legal Contexts, in Children,

Mental Health, and the Law 35 (N. Dickon Reppucci et al. eds., 1984) (citing

Restatement (Second) of Torts 892B (1979)) ("If, to the knowledge of the

                                                                         PAGE 17

                       19 Yale L. & Pol'y Rev. 469, *488


surgeon, the patient was not aware of what he was consenting to and he was not

consciously ignorant and ready to give consent to the surgeon to operate in any

way he sees fit, then the patient's consent was induced by a substantial mistake

and ... is not effective").



   n46. Id. at 35-38.



   n47. Id. at 35 (citing Restatement (Second) of Torts 892A (1979)).



   n48. Id. 892D (1979).



   n49. Schloendorff v. Society of New York Hospital, 105 N.E. 92 (1914).



   n50. Id. at 93.



   n51. E.g., Barnett v. Bachrach, 34 A.2d 626 (D.C. 1943) (holding that consent

is unnecessary when a patient requires an immediate operation); Luka v. Lowrie,

136 N.W. 1106 (Mich. 1912) (finding that a doctor who amputated an unconscious

accident-victim's foot to save his life not liable for battery).



   n52. Dunham v. Wright, 423 F.2d 940, 942 (3d Cir. 1970).



   n53. Id. at 941 (defining an emergency as a situation "which places the

patient in immediate danger"); see also Restatement (Second) of Torts 892D

(1979) ("An emergency makes it necessary or apparently necessary, in order to

prevent harm to the other, to act before there is opportunity to obtain consent

from the other or one empowered to consent for him.").



   n54. Restatement (Second) of Torts 892D (1979).



   n55. Tania E. Wright, A Minor's Right to Consent to Medical Care, 25 How.

L.J. 525, 528 (1982).



   n56. Dreger, supra note 3, at 352. There is only one intersex condition that

fairly constitutes a medical emergency and that is congenital adrenal

hyperplasia which may indicate an underlying life-threatening metabolic problem.

Bruce E. Wilson & William G. Reiner, Management of Intersex: A Shifting

Paradigm, 9 J. Clinical Ethics 360, 365 (1998) ("The only true medical emergency

in the vast majority of newborns with intersex conditions is the evaluation for

congenital adrenal hyperplasia.").



   n57. Many of these advocacy groups have been formed on the intersexed. E.g.,

Intersex Society of North America, <>; Intersex Support Group

                                                                         PAGE 18

                       19 Yale L. & Pol'y Rev. 469, *488


International,; Androgen Insensitivity Syndrome (AIS)

Support Group,; Hermaphrodite Education and

Listening Post (HELP), http://www.jax<uscore><diff>help/sexdiff.html;

K.S. & Associates (Klinefelter's Syndrome),; National

Adrenal Diseases Foundation,



   n58. Dr. Janet Goodall, 337 The Lancet 33, 34 (Jan. 5, 1991).



   n59. Intersex Society of North America, Recommendations for Treatment,

available at (visited Mar. 21, 2001).



   n60. Kessler, supra note 40, at 35, 36.



   n61. E.g., Justine Marut Schober, A Surgeon's Response to the Intersex

Controversy, 9 J. Clinical Ethics 393, 394 (1998) ("Early surgery addresses

parental comfort and a societal view of what constitutes either a male or female

genital appearance."); Gerardo Izquierdo, M.D. & Kenneth I. Glassberg, M.D.,

Gender Assignment and Gender Identity in Patients with Ambiguous Genitalia, 42

Urology 232, 232 (1993) ("Gender assignment ... must be considered a

psychosocial emergency."); Cynthia H. Meyers-Seifer & Nancy J. Charest,

Diagnosis and Management of Patients with Ambiguous Genitalia, 16 Seminars in

Perinatology 332, 332 (1992) ("The birth of an infant with ambiguous genitalia

is a social and potentially medical emergency.").



   n62. Wilson & Reiner, supra note 56, at 362.



   n63. Sherri Groveman, The Hanukkah Bush: Ethical Implications in the Clinical

Management of Intersex, 9 J. Clinical Ethics 356, 358 (1998).



   n64. Restatement (Second) of Torts 59 (1965); Restatement (Second) of Torts

892A (1979); Bonner v. Moran, 126 F.2d 121, 122 (U.S. App. D.C. 1941) ("Many

persons by reason of their youth are incapable of intelligent decision.").



   n65. Louise Harmon, Falling Off the Vine: Legal Fictions and the Doctrine of

Substituted Judgment, 100 Yale L.J. 1, 16 (1990).



   n66. Id. at 16-55 (discussing the evolution of the doctrine of substituted




   n67. Id. at 32-33.



   n68. Angela Roddey Holder, Legal Issues in Pediatrics and Adolescent Medicine

125 (2d ed. rev. 1985); Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It

is cardinal with us that the custody, care and nurture of the child reside first

                                                                         PAGE 19

                       19 Yale L. & Pol'y Rev. 469, *488


in the parents, whose primary function and freedom include preparation for

obligations the state can neither supply nor hinder.").



   n69. Harmon, supra note 65.



   n70. Id.



   n71. Richard W. Garnett, Why Informed Consent? Human Experimentation and the

Ethics of Autonomy, 36 Catholic Law. 455, 486 (1996).



   n72. American Academy of Pediatrics, Informed Consent, Parental Permission,

and Assent in Pediatric Practice, 95 Pediatrics 314, 315 (1995).



   n73. See, e.g., Stanley v. Illinois, 405 U.S. 645, 654-55 (1972) (requiring a

hearing of fitness as a parent before loss of custody of one's child); Wisconsin

v. Yoder, 406 U.S. 205, 232 (1972) (allowing Amish parents to remove their

children from the public education system); Pierce v. Society of Sisters, 268

U.S. 510, 535 (1925) (upholding the discretion of the parents in the choice of

schooling on the theory that "those who nurture [the child] and direct [the

child's] destiny have the right, coupled with the high duty, to recognize and

prepare [the child] for additional obligations"); Meyer v. Nebraska, 262 U.S.

390, 399 (1923) (upholding the rights of parents to direct the upbringing and

education of their children).



   n74. See Bonner v. Moran, 126 F.2d 121, 122 (D.C. Cir. 1941) ("Generally

speaking, the rule has been considered to be that a surgeon has no legal right

to operate upon a child without the consent of his parents or guardian.");

Holder supra note 68, at 124-25.



   n75. Ross Povenmire, Do Parents Have the Legal Authority to Consent to the

Surgical Amputation of Normal, Healthy Tissue from their Infant Children?: The

Practice of Circumcision in the United States, 7. Am. U.J. Gender Soc. Pol'y &

L. 87, 105-06 (1999).



   n76. Prince v. Massachusetts, 321 U.S. 158 (1944).



   n77. Id. at 159.



   n78. See, e.g., Wisconsin v. Yoder, 406 U.S. at 234 (holding that parental

discretion may be challenged "if it appears that parental decisions will

jeopardize the health and safety of the child, or have a potential for

significant social burdens").



   n79. See, e.g., In re Phillip B., 92 Cal. App. 3d 796, 801 (Cal. Ct. App.

                                                                         PAGE 20

                       19 Yale L. & Pol'y Rev. 469, *488


1979) (upholding a parent's discretion to deny medical treatment for a child

only after finding inconclusive evidence that the alternative would be in the

best interests of the child ).



   n80. The issue of experimental treatment also arises in the context of

sterilization of minor children. See, e.g., In re C.D.M., 627 P.2d 607, 612

(Alaska 1981) (requiring that the sterilization is in the best interests of the

child before it may ordered); In re Romero, 790 P.2d 819, 822 (Colo. 1990)

(allowing sterilization only after a showing that it is medically essential or

in the patient's best interest); In re Debra B., 495 A.2d 781, 783 (Me. 1985)

(employing a best interests test to determine whether sterilization should be




   n81. Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941).



   n82. Id. at 121.



   n83. Id.



   n84. Id. at 123 ("Here the operation was entirely for the benefit of another

and involved sacrifice on the part of the infant of fully two months of

schooling, in addition to serious physical pain and possible results affecting

his future life.").



   n85. Id. at 123.



   n86. Hart v. Brown, 289 A.2d 386 (Conn. 1972).



   n87. Strunk v. Strunk, 445 S.W.2d 145 (Ky. 1969).



   n88. Hart, 289 A.2d at 391.



   n89. Id. at 389.



   n90. Id.



   n91. Strunk, 445 S.W.2d at 146.



   n92. Hart v. Brown, 289 A.2d 386, 388 (Conn. 1972) ("In this type of graft

there is substantially a 100 percent change that the twins will live out a

normal life span - emotionally and physically.").


                                                                         PAGE 21

                       19 Yale L. & Pol'y Rev. 469, *488



   n93. In re Richardson, 284 So. 2d 185, 187 (La. Ct. App. 1973).



   n94. Id. at 187.



   n95. Id. at 185.



   n96. Id. at 187.



   n97. Id.



   n98. In re Guardianship of Pescinski, 226 N.W.2d 180, 182 (Wis. 1975).



   n99. Id.



   n100. Despite the fact that this Note concentrates only on the conditions of

micropenis and clitoromegaly in this essay, it is the author's position that the

practice of non-medically-indicated genital normalizing surgery is abhorrent in

all cases without the patient's legal consent.



   n101. Crouch, supra note 9, at 374.



   n102. Marut Schober, supra note 61, at 393 ("The long-term efficacy of the

structural results of various surgeries and their impact on the individuals'

psychological, social, and physical adjustment remains unknown.").



   n103. Domurat Dreger, supra note 3, at 351 ("What few outcome studies there

have been of intersex management have basically focused on how good the specific

surgical repair turned out.").



   n104. Marut Schober, supra note 61, at 393.



   n105. E.g., Intersex Society of North America, What is ISNA?, at (visited Mar. 27, 2000) ("The Intersex Society of North

America (ISNA) is an education, advocacy, and peer support organization which

works to create a world free of shame, secrecy, and unwanted surgery for

intersex people (individuals born with anatomy or physiology which differs from

cultural ideals of male and female)."); Intersex Voices, What is Intersex Voices

about?, at<diff>cisae (visited March 31, 2000) ("The

Intersex Voices page is written by intersexed people and is presented as an

alternative voice to the writing which have heretofore appeared almost

exclusively in the medical press, written by non-intersexed people. What you

will find here are our voices, our experiences, our views and feeling about

                                                                         PAGE 22

                       19 Yale L. & Pol'y Rev. 469, *488


ourselves, our lives in the past and in the present.").



   n106. Edmund G. Howe, Intersexuality: What Should Careproviders Do Now, 9 J.

Clinical Ethics 337, 338 (1998).



   n107. Wilson & Reiner, supra note 56, at 363.



   n108. Cheryl Chase, Surgical Progress Is Not the Answer to Intersexuality, 9

J. Clinical Ethics 385, 386 (1998).



   n109. Id. at 385.



   n110. Id. at 387.



   n111. Wilson & Reiner, supra note 56, at 364.



   n112. M.M. Bailez et. al., Vaginal Reconstruction After Initial Construction

of the External Genitalia in Girls with Salt-Wasting Adrenal Hyperplasia, 148 J.

Urology 680, 684 (1992).



   n113. Chase, supra note 108, at 389.



   n114. Howe, supra note 106, at 338.



   n115. Wilson & Reiner, supra note 56, at 364.



   n116. Howe, supra note 106, at 337 ("Many who have had this surgery report

that they subsequently acquired a gender identity that is different from their

anatomically assigned gender.").



   n117. Wilson & Reiner, supra note 56, at 361.



   n118. See Schober, supra note 61, 394.



   n119. American Academy of Pediatrics Committee on Bioethics, Female Genital

Mutilation, 102 Pediatrics 153, 153 (1998).



   n120. Id.



                                                                         PAGE 23

                       19 Yale L. & Pol'y Rev. 469, *488


   n121. Id. The Academy discusses "Type 1 FGM" involving "excision of the skin

surrounding the clitoris with or without excision of part or all of the

clitoris." They refer to this practice as a "clitorectomy" - the same term used

by genital normalizing surgeons when they remove all or part of the clitoris of

an intersexed individual with clitoromegaly.



   n122. Chase, supra note 108, at 388.



   n123. Id. at 385.



   n124. Domurat Dreger, supra note 3, at 352.



   n125. Howe, supra note 106, at 338.



   n126. Sharon E. Preves, For the Sake of the Children: Destigmatizing

Intersexuality, 9 J. Clinical Ethics 411, 415 (1998).



   n127. Id. at 417.



   n128. Intersex Soc'y of N. Am., ISNA's Amicus Brief on Intersex Genital

Surgery, at (visited Mar. 25, 2001).



   n129. Preves, supra note 126, at 411.



   n130. Crouch, supra note 9, at 379.



   n131. Id. at 377.



   n132. Howe, supra note 106, at 338 (exploring the question: "Why Is This

Controversy So Heated?").



   n133. Domurat Dreger, supra note 3, at 345.



   n134. E.g., Intersex Society of North America,; Intersex

Support Group International,; Androgen Insensitivity

Syndrome (AIS) Support Group,; Hermaphrodite

Education and Listening Post (HELP),; K.S. &

Associates (Klinefelter's Syndrome),; National

Adrenal Diseases Foundation,



   n135. Documentary on Intersex (Discovery Channel television broadcast, Mar.

                                                                         PAGE 24

                       19 Yale L. & Pol'y Rev. 469, *488


26, 2000).



   n136. Domurat Dreger, supra note 3, at 352 ("Parents are at least in most

cases not told that the treatment model is not proven to work, based on a

peculiar theory of gender identity formation, and increasingly widely




   n137. Wilson & Reiner, supra note 56, at 366.



   n138. Schober, supra note 61, at 394.



   n139. Domurat Dreger, supra note 3, at 349.



   n140. Id. note 4, at 25.



   n141. Groveman, supra note 63, at 357.



   n142. Howe, supra note 106, at 339.



   n143. Wilson & Reiner, supra note 56, at 366.



   n144. Howe, supra note 106, at 340.


**********  Print Completed  **********


Time of Request:   January 20, 2002  07:38 pm EST


Print Number:      968:0:44253913

Number of Lines:   950

Number of Pages:   24