Law FAQs

Is it mandatory to proceed with surgery in the presence of an intersex condition?

According to the usual rules of health-care intervention, surgery is never a mandatory procedure unless it is a life-saving necessity. In the case of an intersex child, it is necessary to determine which condition is involved, as there may be different instances, many of which do not require any intervention either surgical or medical.

What are the reasons for invasive interventions practised on intersex children, and how does the law intervene?

Invasive and irreversible interventions are practised in the belief that, for the child’s well-being, their body must be “corrected” and brought back to normal as early as possible. However, this notion of psychosocial well-being is based on an adult perspective, which is often influenced by dominant social and cultural norms. Thus, the well-being of children with intersex traits is assumed to be compromised, even if there are no real health needs. But people do not usually think about actual, concrete therapeutic needs, nor about the physical and psychological negative effects that surgery at an early age can have on a person's whole life, considering that it will impact on their rights and freedoms, foremost their right to health.
It should be borne in mind that any therapeutic evaluation must focus on preserving the integrity of the body, safeguarding the person's social and relational life —current and future —, protecting the person's well-being, freedom of choice, and self-determination.

How are intersex people involved in decisions about surgery, and how does the law protect freedom of choice?

Often there is no direct involvement of the persons concerned, especially when they are minors and supposedly unable to understand. Therefore, doctors and parents make the decision, as there is no provision for the participation of the judicial authority, unless it is expressly called upon (e.g., in cases of conflict between parents, between health professionals and parents, between the minor and their parents). When an intersex person has reached the age of majority, they will have full capacity to exercise their freedom of choice and self-determination, and have medical-surgical treatment after giving their informed consent. If the person concerned is a minor, the law requires an assessment of whether the choices are made in the person’s exclusive interest. The law will not consider the parents’ stand nor their hypothetical interest in unequivocally assigning their child to one of the two sexes. The pursuit of well-being and the protection of health must stand as the guiding criteria for any choice, which should involve the minor if they are capable of discerning, as is the case with any other therapeutic choice. Indeed, the protection of the body's health and integrity precludes hormonal and/or surgical interventions unless absolutely necessary for the minor's well-being.