Delhi High court seeks response from Delhi govt on plea to ban sex-selective surgeries on intersex infants

The Delhi High Court on Wednesday issued notice to the Delhi government on a public interest litigation (PIL) petition seeking ban on 'sex-selective' surgeries on inter-sex infants and children [Srishti Madurai Educational Research Foundation v. Govt. of NCT of Delhi & Ors]

A Division Bench of Chief Justice DN Patel and Justice Jyoti Singh sought responses from the Delhi government and the Delhi Commission for Protection of Child Rights (DCPCR) on the plea filed by an NGO, Srishti Madurai Educational Research Foundation.

Advocate Robin Raju, appearing on behalf of the petitioner NGO, informed the Court that the petition had cited an opinion given by DCPCR against such surgeries and had also referred to a Supreme Court decision which had previously held that no one shall be made to undergo medical procedures for legal recognition of their gender identity.

However, when the recommendation of the DCPCR against these surgeries was sent to Delhi government and it's health department in January, no steps were taken by them in this regard, till date.

Delhi government's Additional Standing Counsel Satyakam accepted notice on behalf of the government.

The matter will be heard again on October 11.

The plea also sought directions from the Court to frame detailed guidelines specifying the conditions when such medical surgeries can be performed.

The plea stated that the issue raised is intended to benefit the people residing in Delhi besides being of significance to the intersex community across the country. The petitioner also claimed that it had played a key role in highlighting the “pathos” of LGBTQIA+ community to the “high echelons” of the administration.

“It is pertinent to mention herein that the Managing Trustee of the Petitioner organisation was also appointed as an advisor by Respondent No.3 (Delhi Commission for Protection of Child Rights), so that it could take a considered decision on the plea filed before it to declare a ban on medically unnecessary, sex-selective surgeries on intersex infants and children,” it added.

The PIL argued that a plea filed before Delhi Commission for Protection of Child Rights (DCPCR) had highlighted instances where intersex people were treated as disabled, thereby being approached through a medical lens.

Their condition was consequently reduced to “an impairment” and surgeries resulted in long term impairments and a lifetime of medical complications.

It was also highlighted in the plea that most times, such surgeries were conducted without prior free and fully informed autonomous consent.

The High Court was informed that on the basis of the response of the Delhi Medical Council, Department of Health and Family Welfare, Govt. of NCT of Delhi, and Department of Social Welfare, Govt. of NCT of Delhi, along with organisations and experts in the domain, the DCPCR had opined that the Government of Delhi should declare a ban on medically unnecessary, sex-selective surgeries on intersex infants and children except in cases of life threatening situations.

Though the DCPCR order was sent to the Ministry of Health, Govt. of NCT of Delhi, no steps had been taken towards its implementation, the plea said.

“The issue of sex-selective surgeries or medically unnecessary normalising surgeries has a long lasting drastic psychological impact on the minds of intersex people and deters them from even seeking medical attention in future. This aspect is proved by recent news reports that examine the reasons behind reluctance to seek medical help despite having symptoms of Covid-19 among a significant number of intersex people,” the PIL stressed.

The petitioner also pointed out that the "inaction" on the part of the respondent was "illegal, and arbitrary", therefore violative of its fundamental rights guaranteed under the Constitution of India.

The petition has been filed through advocates Robin Raju, Yash Prakash and Deepa Joseph.