By Gabriela Lünsmann (lawyer, Hamburg)
When it comes to intersex children, German family law rises important questions regarding the rights to information and to self-determination. These questions concern the parents, but also third parties, such as the doctors treating the children.
Rights and Responsibilities of Parents and Third Parties, and Children’s Self-Determination
Parents’ right to exercise their custody is rooted in the German constitution. Custody allows parents to make a wide range of decisions for their children. In doing so, it is their responsibility to provide the best possible care for their children. Parents are not allowed to make decisions that conflict with their children’s best interests. The state has the responsibility of protecting children from their parents when they want to make harmful decisions. Over time, the child’s own will and wishes become more and more important. The older children get, the more limited parents are to make decisions against their will.
To what extent do children have a say in their own affairs? Unfortunately, there is no general answer to this question. It depends on the individual child’s ability to give their informed consent in each specific case.
Parents make many decisions for their minor intersex children. For example, they have the right to choose which gender entry will be added to the birth register when their child is born. The German Civil Status Act allows intersex children to be registered as “diverse”, “female”, “male”, or to leave the gender entry blank (§ 22, para. 3 PStG). Children have the right to change their first name and gender entry in the future. All they must do is submit a declaration to the registry office (Standesamt). These changes can be made several times.
Parents with custody can only take the decision to have their children undergo a sex assignment surgery if the intervention is medically necessary to prevent a specific and acute risk to the child’s health. Doctors need parental consent for this kind of surgery if it involves children who are not yet capable of giving their consent.
On the other hand, surgeries that are not medically necessary and only serve to align the child’s sexual characteristics to the binary idea of a female or male body are a violation of human rights. In order to protect minors who are unable to give their consent from such interventions, German lawmakers passed the “Law for the protection of children with variants of gender development” in 2021. This law states that parental custody does not allow such surgical procedures. These operations are only allowed with the explicit consent of a child who is old enough to give their consent. If this isn’t the case, those involved can be punished by law.
It is now finally illegal to perform cosmetic surgeries on intersex children without a medical indication and with the only goal of adapting their physical appearance to what is considered to be typically male or female. Some procedures may be medically necessary but not immediately life-saving. If the decision can’t be delayed until the child is able to give consent, the intervention requires the approval of the family court. Which procedures fall into which category can only be determined on a case-by-case basis.
Rights of Minors in Relation to their Parents and Third Parties
Children under the age of 14 must be represented by their legal guardians at the registry office if they wish to file a declaration to change their first name and gender entry. Minors aged 14 or over, on the other hand, must file the declaration personally, but they need the consent of their legal guardian. If the legal guardian refuses to give consent, the registry office will notify the family court. The court will then issue grant consent if the changes are not contrary to the minor’s best interests. In other words, minors have the right to seek the help of the family court if they need to defend their rights against their parent’ will.
Doctors providing medical care, surgeries or therapy for children and minors must always consider whether they can give their consent. If they can, as patients, they must always be involved in the decision-making regarding their own therapy. Doctors must inform their minor patients about the treatment, its risks and benefits, and must get their consent. If they fail to do so, they violate professional regulations and can be punished by law. The child may then be able to claim damages and compensation for pain and suffering.
If a minor has the capacity to give consent and requests a medically indicated procedure, the procedure can and must be carried out. In this case, the decision only depends on what the minor wants and not on the wishes of their legal guardian. In practice, however, doctors will regularly ask for the legal guardians’ consent for health insurance and contractual reasons. If the legal guardians refuse to give their consent, the child can turn to the family court for help.
This means that the family court can be involved both when the parents want to consent to a medical treatment or procedure that the child rejects, and when child wants a certain medical treatment that the parents refuse to accept. If parents, doctors and the child disagree about whether the child has the capacity to consent to a particular treatment, the question can be submitted to the family court.
The will and wishes of minors who are not yet capable of giving medical consent become increasingly important as they grow older. These patients must be involved in the decision-making process according to their age and level of maturity. It is important to note that, when treating minors who are not yet capable of giving consent, doctors are not bound by medical confidentiality regarding their parents. In this case, parents exercise their custody and, as such, have the right to be informed about all issues concerning the treatment and the doctor-patient relationship. It should be noted, however, that the child or adolescent must also be fully informed.
When do Minors Have Capacity to Consent?
Doctors treating children and adolescents are constantly faced with these questions: Who should be informed about the treatment and who should give their consent? The minor themselves, the parents, or the family court? The decisive factor to know whether a minor’s consent is valid is not their legal capacity (Gaschäftsfähigkeit), that is, their ability to enter legal contracts. It rather depends on whether the minor “is capable, given their level of intellectual and moral maturity, of understanding the meaning and scope of the intervention and of giving their permission for it”. This means that the minor must be able to weigh the risks and benefits on their own. The capacity to consent does not begin at a fixed age. It depends on the patient’s level of maturity and, often, on their previous medical experiences. However, it is generally assumed that minors under the age of 14 can only give medical consent in exceptional cases.
In practice, this means that before any treatment doctors must check whether the minor has the capacity to give medical consent. For example, a 15-year-old patient may already have the capacity to consent to minor procedures, such as taking blood. The bar is set much higher when it comes to treatments with higher or significant risks. If the doctor is unsure about whether a minor patient can give their consent, they must involve the legal guardian in the medical decision. Parental consent is required whenever the child is not capable of giving medical consent on their own. According to the principles of custody, this consent must be given by both parents and, in exceptional cases, by a parent with sole custody.