By Gabriela Lünsmann (lawyer, Hamburg)
When considered from a family law perspective, questions concerning the rights of intersex children to knowledge and self-determination arise not only in relation to their parents, but also in relation to third parties, such as the doctors who are providing them with treatment.
Rights vis-à-vis parents
Parents’ right to exercise their parental authority is enshrined in the German Basic Law; however, the state also has a duty to protect children from their parents if they want to make decisions that are harmful to their children. Even if parents’ custody rights provide plenty of scope for parents to make decisions on their children’s behalf, minors also have greater rights the older they become.
Even if parents have full custody rights, they are still not able to make decisions that affect their children that are not legally permissible. For example, lawyers believe that this applies if parents’ consent to operations on their children that do not have the purpose of reducing specific health risks. However, discussions are now being held regarding the introduction of an explicit ban on irreversible gender reassignment operations due to the fact that these types of operations are still being carried out on intersex children who are not able to give their consent. If there were an explicit ban, parents would no longer be able to give their consent to these types of operations. The UN also recognises these operations as violations of human rights. Please follow the link here to read more about human rights.
There are many other decisions that parents may need to make for their intersex children beyond those relating to sex-reassignment operations.
Another issue that comes under parents’ rights to make decisions on behalf of their children concerns the process involved in entering the child’s gender at birth at the registry office. The new law laid down in § 22 para. 3 of the PStG (German Civil Status Act), specifies that intersex children can now be entered into the birth register as “diverse”, “female”, “male” or the entry can be left blank. Any decisions reached concerning both gender and the child’s first name can be changed at a later date by submitting a declaration to the registry office. It is also possible to change the entry multiple times.
For children under the age of 14 years, the declaration can only be submitted by the child’s legal guardians. Children over the age of 14 can submit the declaration themselves, however, their legal guardians must agree to this. If the legal guardians do not consent, the registry office must inform the family court that, as legal guardians, the parents’ wishes override the child’s wishes if this does not put the child’s welfare at risk. Young people can seek help from the family court if they wish to assert their rights against their parents.
The family court can also help if the parents and the child have differing opinions on medical treatments. This applies if parents approve a type of medical treatment or operation which the child is refusing. It also applies conversely if the child wants to undergo a certain medical treatment and the parents are refusing to consent to this.
Ability to give consent
The important point to take into account when considering medical treatments, operations and therapies is whether the children or young people concerned are capable of giving consent. If this is the case, they must always be regarded as patients who should be included when decisions are made regarding the choice of therapy. If doctors do not provide young patients who are capable of giving consent with sufficient information about their treatment and its advantages and disadvantages, and do not obtain their consent, they are violating their codes of professional conduct and are committing a criminal offence. The complainant may be entitled to claims for damages or compensation.
When children and young people receive treatment, it is therefore important that doctors ask themselves who needs to receive information about the treatment and whose consent is required, i.e. is it required from the minor or from the parents. It is not dependent on the legal capacity of the young person for the consent to be effective, i.e. on the young person’s ability to enter into contracts independently, but on whether the young person is “capable of judging in accordance with his moral and mental maturity the meaning and implications of the procedure and his consent” (German Federal Court of Justice – BGH). The young person must therefore be able to assess the benefits and risks associated with any decision. The ability to give consent is not bound by a fixed minimum age. However, it is generally considered that young people under the age of 14 are only capable of giving consent in exceptional cases.
This means in
practice that doctors need to give thorough explanations before any treatment,
whether the minor is capable of giving consent or not. For example, a 15-year
old patient has the ability to make judgements when it comes to routine
treatments and minor procedures such as taking blood. The benchmark is
considerably higher if the treatments are associated with higher or a high
level of risk. For example, if the doctor dispensing the treatment is unsure
whether the young patient is capable of giving consent or not, it is necessary
to involve the patient’s legal guardians in any decisions about suitable
treatment. It is always necessary to obtain parental consent when treating a
child who is not capable of giving consent. According to principals specified
in the law on child custody, both parents are required to give consent, unless
one parent has sole custody of the child.
Yet what happens if the
child or young person does not agree with the procedures that the parents would
like to happen and have authorised? One thing is certain, is that the
children’s wishes become more and more important as they advance in age. This
is why it is important that the age and maturity of the young person, who is
deemed to be incapable of giving consent, is taken into account when any
decisions are made. As soon as a young person is capable of giving consent,
i.e. is mature enough to grasp the implications of a particular procedure,
decisions rest solely on the young person’s consent and no longer on the wishes
and preferences of the child’s custodians. When treating children and young
people who are not yet capable of giving consent, it is not necessary to comply
with medical confidentiality with respect to the parents who have custody of
the child. The parents exercise their custodial rights in this case and are
entitled to be informed of any issues relating to the doctor-patient relationship.
However, it is important to note that the child or young person should also be
provided with detailed information.
 Kolbe, Angela: Stellungnahme Zur Situation von Menschen mit Intersexualität in Deutschland; Lemke, Ulrike: Stellungnahme Zur Situation von Menschen mit Intersexualität in Deutschland.