Who Should Decide the Medical Fate of Children: Doctors, Parents, or the Child?

Who Should Decide the Medical Fate of Children: Doctors, Parents, or the Child?

Parents have a significant responsibility when it comes to the health, welfare, and upbringing of their children. They not only have a moral duty to do right by their children, but also a legal obligation to ensure that the children have access to a safe home, food, clothes, and education, among other rights that go beyond the provision of basic necessities for children. Though the law makes the responsibility of the parents extremely clear for the provision of basic needs, there can be significant issues when the parents must decide on who the child may be in contact with, whether religion will be brought into the home, and what the best medical decisions should be for a child. Sometimes, in the case of medical decisions, medical professionals make a decision for the parents, which can leave parents feeling like their rights have been stripped away from them.

Current Practice: Surgeons Deciding the Best Gender for an Intersex Child

Recently, in South Carolina, a case has been brought to light where a surgeon made an important decision that would affect the future of the child (with little to no consultation with the parents): what sex should the child be? Current practice provides that when a child is born intersex (where the child is born with both male and female sex organs), it is generally up to the surgeon (and doctors) to determine which sex the child will become.

The Prevalence of Sex-Reassignment Surgery: How Many Children Have Been Affected?

In the United States, 1 in 2,000 babies is born intersex, with a range of physical traits that make it unclear whether the child is more likely to grow up better as a boy or a girl. Doctors generally assess the genetic, hormonal, and anatomical characteristics of the baby, and then perform a sex-reassignment surgery based on the best predictions of how well the child will grow up as that gender. In 2012, it was estimated that almost 3,000 procedures have been performed on minors under the age of 18, with almost 1,800 of those surgeries performed on minors under the age of 5.

The Controversiality of Surgery on Children: Who Should Provide Consent?

Reassignment surgeries performed on children are extremely controversial due to significant issues regarding unnecessary surgeries being performed on healthy babies and consent of the child. The case in South Carolina dealt with a baby born with both male and female markers and who had blood testosterone levels that aligned with other baby boys of the same age. After review of the baby’s condition, the doctors, in the face of evidence proving a disposition to being male, decided to make the baby a female because of two X chromosomes (signifying a genetic sign for female). The child, at the time of the decision, was in foster care; the child’s biological father had abandoned the family and the mother was found unfit to be custodian to the child. The mother signed off on the gender reassignment surgery; soon after the surgery, her parental rights were terminated and the new baby girl was put up for adoption. The baby girl, who now identifies as male, along with the adoptive parents, brought suit against the hospital and the doctors for subjecting the child to gender reassignment surgery.

South Carolina Judge: Sex-Reassignment Surgery a Violation of Intersex Kids’ Constitutional Rights

The basis of the adoptive parents’ action against the hospital, they state, has nothing to do with whether the doctors and hospital chose the right or wrong sex for the child; they believe that the lawsuit against the hospital has everything to do with performing surgery on a child in the foster care system without the child’s consent or knowledge, without judicial review, and without ever going in front of an ethical consultation. The South Carolina judge ruled that the lawsuit would go forward; a ruling in the future could determine that gender reassignment surgery is a violation of children’s Constitutional rights.

Experienced Family Law Attorneys in Mount Pleasant, Charleston Area

Generally, medical decision-making on behalf of a child is with the parents of the children. However, disagreement between the parents of the best course of action or disagreement between the parents and the child can lead to serious legal issues. An experienced family law attorney at Klok Law Firm LLC can provide guidance on the best way to deal with indecision regarding medical issues. Contact Klok Law Firm LLC today for a free and confidential consultation.

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