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19 Yale L. & Pol'y Rev. 469 (2000-2001)
First, Do No Harm - The Fiction of Legal Parental Consent to Genital-Normalizing Surgery of Intersexed Infants

handle is hein.journals/yalpr19 and id is 479 raw text is: First, Do No Harm-The Fiction of Legal Parental Consent to Genital-Normalizing Surgery on Intersexed Infants Kishka-Kamari Ford' Medical professionals recognize the Latin mantra Primum, non nocere, First, do no harm, as the first principle of medicine.' Yet, between one hun- 2 dred and two hundred times a year in America, 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 psycho- logically 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 di- agnosis and treatment of intersexed infants in America. The scientific roots of the current model of treatment of intersexed infants are identified, and its prin- ciple 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 in- formed 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. t Yale Law School, J.D. 2001. 1. 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 rec- ognized as one of the most significant admonitions from the Hippocratic Oath.). 2. Kenneth Kipnis & Milton Diamond, Pediatric Ethics and the Surgical Assignment of Sex, 9 J. CLINICAL ETHICS 398, 401 (1998).

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