R.M v ATTORNEY GENERAL & 4 others [2010] eKLR 59. The court was referred to authorities from Colombia’s Constitutional Court on the legality of performing gender reconstruction surgery on children, and the responsibility in assigning gender. These were:- Sentencia No. T-477/95 (the Gonzalez case),where it was held that doctors could not alter the gender of a patient, regardless of the patient’s age, without the patient’s own informed consent; the Ramos case (supra), where an application by the mother of an intersex child for the mother to give consent to reconstructive surgery on behalf of the child, was refused both at the trial court and on appeal to the Constitutional Court, the court holding that it would be wrong for anyone to give consent for sex change other than the child herself/himself; and the Cruz case (supra)wherethe parents sought authority from the court for genital reconstructive surgery for an intersex child born with female chromosomes but with external male genitalia. The Constitutional Court holding that intersex children of over the age of 5 years must give their informed consent before undergoing reconstruction surgery, narrowed the parental consent to apply to children under the age of 5 years. The Constitutional Court further set 3 criteria which must be met. Firstly, detailed information must be provided and parents informed of the pros and cons. Secondly, the consent must be in writing and thirdly, the authorization must be given in stages. 60. It was argued that the Colombian Court decision did not adequately protect the marginalized and forgotten minority though it has increased the world’s awareness of the problems with genital reconstruction surgery. On the issue of marriage, it was argued that genital reconstruction surgery makes matters worse because of the legalities involved in surgically redefining the gender of a child and the hustle of changing birth documents after such a change. It was argued that where such change occurs at infancy, it could be an infringement on an individual’s ability to marry as an adult, as the cost of any desired further change may be prohibitive. 61. It was submitted that given the law as it currently stands, genital reconstruction, surgically defines an intersex person as male or female thereby prohibiting them from marriage to a person of their “same” gender. It was submitted for instance, that a child born with male chromosomes, or mixed chromosomes, if surgically assigned a female gender at birth, would be prohibited from marrying a female later in life, without first undergoing another sex change operation. It was argued that by choosing a gender for a child and performing reconstruction surgery at birth, the doctors or parents may be infringing on an individual’s ability to marry as an adult. 62. It was further submitted that no Government should be allowed, through its laws, to infringe upon the right to bodily autonomy, the right to choose whether or not to reproduce, the right to marry and the right to make decisions about how to raise children without first proving in a court of law that there is a compelling state interest that must be served. It was submitted that the doctrine of parens patriae articulates the government’s interest in protecting the rights of vulnerable individuals from harm. Thus, the doctrine allows the government to interfere with parents’ choices about how to raise their children when the children may be harmed because of the parents’ actions or inactions. In the case of intersex children, the government may have reason to override the parents’ decision to perform surgery if the surgery would harm the child. 63. The court was urged to consider international standards such as the Convention on the Rights of the Child which recognizes the rights of children (independent of their parents) by allowing children to veto the parents’ decisions on issues of health education and religious upbringing. Emphasis was laid on the importance of doctors within Kenya making a concerted effort to provide parents and children with all available knowledge regarding intersex conditions before making the recommendation to perform genital reconstruction surgery. It was submitted that this petition provides an opportunity for this court to make declarations over the plight of the petitioner in particular, and intersex persons generally, and the specific violations of the fundamental rights. http://www.kenyalaw.org - Page 17/45