Last 10 Years the Traditional Model of the Doctor Having a Total Control Over the Infant Has Been Questioned
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The Intersex Baby From a Social Emergency to a Human Rights Challenge Author: Marika Komboki Lancing Human Rights Bachelor Thesis 15 Credits Spring 2018 Supervisor: Mikael Spång ABSTRACT This paper aims to shed light on the intersex infant, a baby born with an unclear gender. The main goal of the paper is to discuss whether unnecessary gender normalizing surgeries on infants, also called intersex genital mutilation (IGM) that is not necessary to preserve the life or physical health of the infant is in the best interest of the child. Legal method will be used to frame the topic in a legal context and discourse analysis in combination with content analysis will be applied in order to understand the transformation of intersex, from being a social emergency to becoming a human rights issue. The use of the concept, the best interest of the child will serve as an analytical framework together with a theoretical framework consisting of queer theory. Together it will help to map out the human rights challenges regarding IGM as a socially constructed medical product that needs to be highlighted and prevented in order to secure the rights of the child. Hopefully, the concluding results will contribute to further awareness on the issue of unnecessary infant intersex surgery and frame it in a human rights context. Keywords: Children´s Rights, Intersex Genital Mutilation, Jus Cogens, Human Rights, Activism, Queer Theory. 2 Acknowledgments I would like to give my gratitude to the Students, Professors and Guest Teachers from the Human Rights Bachelor Program that provided me with input and different perspectives. I specifically thank my thesis supervisor, Associate Professor Mikael Spång for his patience and trust to develop my own ideas. I would not have been able to complete this study without his guidance and inspiring inputs. I also thank my mother Maria Lancing and father Anestis Kombokis for their endless time of support throughout my life and during this Bachelor programme. I further thank my husband John Ekström for encouraging and believing in me and for always being there for me when I most need him. Finally, I thank my beloved children, Nestor, Inga and Dante for inspiring me with their humble way of approaching life and its challenges. 3 List of Abbreviations CAH - Congenital Adrenal Hyperplasia CAT - Convention against Torture and Other, Cruel, Inhuman or Degrading Treatment CRC - Convention on the Rights of the Child DSD - Disorder of Sex Development or Difference of Sex Development ECHR - European Convention on Human Rights ECtHR - European Court for Human Rights FGC - Female Genital Circumcision FGM - Female Genital Mutilation GIGESC Act - Gender Identity, Gender Expression and Sex Characteristics Act 2015 ICCPR - International Covenant on Civil and Political Rights ICESCR - International Covenant on Economic, Social and Cultural Rights IGM - Intersex Genital Mutilation ISNA - Intersex Society of North America LGBT - Lesbian, Gay Bisexual and Transgender OII - Organization Intersex International UDHR - Universal Declaration for Human Rights UIIS – Unnecessary Infant Intersex Surgery 4 Table of Contents Abstract……………………………………………………………………………………...…2 Keywords…………………………………………………………………………….…...……2 Acknowledgements…………………………………………………………………….………3 List of Abbreviations…………………………………………………………….……..……...4 1. INTRODUCTION………………………………………………………………………....7 1.1. Introduction of Topic………………………………………………………………….7 1.1.1. Terminology and Conditions……………..……….……….……………...……8 1.1.2. Frequency………………………………………….…………..……………..…9 1.2. Research Problem and Human Rights Relevance…………………………..…………9 1.3. Aim and Research Question……………………………………….…………………10 1.4. Previous Research………………………………………………………………...….11 1.5. Theory, Method and Material…………………………………..........…………....…13 1.6. Delimitations………………………………………………………………………....14 1.7. Ethical Aspects……………………………………………….…………………...….15 1.8. Chapter Outline…………………………………………………………………..…..15 2. THEORY…………………………………………………………………………...…….16 2.1. Queer Theory………………………………………………………………..………17 2.2. The Concept of the Child´s Best Interest……………………………………………18 3. METHOD AND MATERIAL……………………...………………………………….…20 3.1. Legal Method…………………………………...………………………………...…20 3.2. Discourse and Content Analysis……………………………………………….…....21 3.3. Material……………………………………………………………….…….……….23 4. BACKGROUND…………………….………………………………………………...…25 4.1. Before Modern Medicine…………………….……………………………………...25 4.2. Modern Medicine and Gender Assignment…………………………………………26 5 5. ANALYSIS………………………………………………………..……….…….………...27 5.1. Legal Framework…………………………..……………….……………..……..........…27 5.1.1. International Dimension…………………………….……………..………….27 5.1.2. National and Regional Dimension………………..…………………...……..28 5.2. From a Social Emergency to a Human Rights Issue.……………………….…...…30 5.2.1. Human Rights Activism……….……………………….………………….…30 5.2.2. Is IGM a Human Rights Violation? …………..…………………………..…32 5.2.2.1. IGM - a Western Form of FGM? …………..…………………….…34 5.2.3. The Right to Bodily Integrity……..…………………...…………….……….35 5.2.4. Consent……..…………………...……………………………………………….……36 6. CONCLUSION………………………………………………………….…………….….40 BIBLIOGRAPHY………………………………………………………….……………........42 6 1.1. INTRODUCTION 1.1. Introduction of Topic As a child, in biology class, I would learn about the XY and XX chromosomes that formed the genders of babies. What I was not taught however, was about the condition of intersex, and that there are babies being born with genitals halfway between male and female types every year. In short, intersex can be described as an umbrella term for people that are born with an unclear gender that do not fit stereotypical gender roles, such as man or female (Medlineplus 2018). The current praxis for intersex babies is medical treatment either by surgeries - a medical praxis that today also is referred to as intersex gender mutilation (IGM), hormone treatment or both (Coran 1991: 812-820). This thesis does not discuss gender normalizing surgeries that is needed in order to preserve the life or physical health of an intersex baby. It instead focuses on the issue of unnecessary, or as some say “cosmetic” infant intersex surgeries, aimed to change the genitals or internal bodily structures in ways that are not necessary to the life or physical health of the infant. To put it simply, the thesis discusses surgical intervention on infants with a purpose of creating heterosexual typically male or typically female gender characteristics. As an example, it could be a conversion of a “micro penis” into a clitoris, feminising the infant with hormones and creating a urinary opening where none exists, not in order to prevent the death of the infant but in order to make the child fit into a gender stereotypical role that meets the societal demands expected form the child. A friend once told me that considering the great variations of intersex and high number of intersex babies being born every year, gender should be seen as a spectrum rather than the stereotypical roles of typically male or typically female, it was this thought, together with the fact that there is little available information and awareness about intersex given in the Swedish societal context that made me interested in writing my thesis about intersex babies and the challenges they face from their first moment of breath. In order to reach my goal of highlighting the issue of unnecessary infant intersex surgery in a human rights context, I will apply a discourse and content analysis on the dimension of intersex activism and social movements that have contributed to many of the recent changes in the intersex arena. In order investigate whether IGM is in the best interest of the child, a legal method will be applied. The theoretical framework consists of the concept of the child´s best interest, combined with queer theory in order to map out the human rights challenges and problematise the binary constitution of sex which I find central to IGM. 7 1.1.1. Terminology and Conditions As explained in the introduction, intersex can be described as an umbrella term for people that are born with an unclear gender that do not fit stereotypical gender roles, such as man or female (Medlineplus 2018). The name intersex however is a contested term and the conditions varies. Therefore, I find it important to clear out the different terms and conditions from the start. Since intersex covers a variety of different biological gender variations I find it important to give a short explanation of the different names, conditions and the frequency. The terminology of intersex is under dispute and has no current consensus. Hermaphroditism, intersex, disorder of sex development, atypical sex characteristics, difference of sex development or diversity of sex development are some of the terms that are used for people born with intersex conditions. It is important to point out that intersex is different compared to terms such as bisexual or transgender. Intersex is a biological condition that has nothing to do with sexuality, an intersex person can be either straight, homosexual, bisexual or even asexual. Historically intersex people has been called hermaphrodites, this was mainly during antiquity, in stories and myths. At first not in a specific negative way but the term was later on perceived as stigmatizing, similar to “monsters” and “freaks” (Reis 2007: 536-537). Later on, in the twentieth century together with the development of modern science in the term atypical sex development and intersex was introduced and was later on followed by the term disorder of sex