Arguments against a "general and permanent" ban on pediatric intersex surgery: A response to Clune-Taylor.

Abstract

The paper offers a critical response to the proposed "dis/analogy" between the restriction of Jehovah's Witness parental right to refuse life-saving blood transfusions for their minor children and a "general" and "permanent" ban on "unnecessary" pediatric intersex surgery. The main argument of the analogy is "securing the patient's future autonomy." Feinberg's theory of rights is used to demonstrate that the proposed analogy is untenable. A new category of developmental rights-in-trust is introduced to address specific needs of gender development in DSD situations. Both premises are disputed. First, it is shown that the case of overriding Jehovah's Witness parental rights is not based on securing the patient's future autonomy, but a simple dependency right in Feinberg's theory. Second, it is demonstrated that pediatric intersex surgery is not in the same situation in all morally relevant respects as the Jehovah's Witness case because it represents a special type of developmental right-in-trust. In conclusion, the arguments based on the proposed analogy do not justify a "general and permanent" on pediatric intersex surgery.