Title:
Baby ‘A’ (suing through the mother, E.A.) and The CRADLE-the Children Foundation v. The Attorney General, Kenyatta National Hospital and the Registrar of Births and Deaths
Court:
High Court of Kenya at Nairobi, Constitutional and Human Rights Division
Date:
5 December 2014
CRC Provisions:
Article 7: Name and nationality
Other International Provisions:
African Charter on the Rights and Welfare of the Child
Domestic Provisions:
Kenyan Constitution
Children Act
Registration of Births and Deaths Act
National Gender Equality Act of 2011
Case Summary:
Background:
Baby A was born intersex, with both male and female genitalia. The hospital marked Baby A’s sex as “?” on the legal paperwork. A determinate sex is required for the Registrar of Births and Deaths to issue a birth certificate and the birth certificate form only includes two options for sex – male or female. As a result, Baby A had not been issued a birth certificate.
The petitioners – Baby A, through the mother, and The CRADLE – brought this case to the High Court, claiming that the entry of a question mark in the medical notes denies an intersex child such as Baby A the right to legal recognition and the right to be registered immediately after birth and have a name under Article 7 of the CRC. They argued that not having a birth certificate severely limits Baby A’s ability to enjoy other rights because a birth certificate is required for medical care, school admission, the issuance of a passport or national identification card and employment. Additionally, they argued that intersex children are often forced to undergo corrective surgery which violates their rights to physical integrity and self-determination. Therefore, they asked the Court to direct that such surgery should be done only when the child can make an informed decision, and to establish guidelines for providing consent for corrective surgery following Article 19(2) of the CRC.
Issue and resolution:
Legal recognition of intersex children; birth registration. The Court held that, while neither the government nor the hospital violated Baby A’s rights, Baby A must be registered and issued a birth certificate within 90 days of the judgment. The Court directed the government to collect data on intersex persons and develop guidelines for medical examinations and corrective surgery in accordance with internationally acceptable guidelines. Finally, it determined that it did not have the power to create a third “intersex” category on birth certificates, as this is a matter which should be addressed by legislation.
Court reasoning:
The Court found that the question mark on Baby A’s medical records indicates that the child is intersex. Although there is no evidence Baby A has actually experienced discrimination, the Court recognised that Baby A and other intersex children must be registered by the Registrar of Births and Deaths to prevent future discrimination. Therefore, it ordered an expedited registration for Baby A.
The Court then turned to how to register intersex children. After a detailed analysis of the word “sex” used in the Births and Deaths Registration Act section 2(a), including its definition and exploration of case law, the Court determined that “sex”, as used in section 2(a), means only male or female. Although the Court saw a need for a third category of sex, it concluded it does not have the power to create such a category. So until the legislature acts, intersex children must be registered as either male or female.
Finally the Court examined the petitioners’ request for additional guidelines and research on intersex persons. The Court found that there is a lack of guidelines and regulations governing how hospitals and parents determine what medical procedures or corrective surgery an intersex child needs or does not need, which could lead to violations of the intersex child’s rights. Although the Court found that the state has a duty to protect intersex children under the Constitution, it determined it is not in a position to collect the necessary research or to create the guidelines. Therefore the Court directed the government to begin creating guidelines to protect intersex children.
Excerpts citing CRC and other relevant human rights instruments:
[2] The Petitioners’ case was presented by Mr. Chigiti who submitted that under Article 5 of the Universal Declaration on Human Rights, everyone has the right to recognition everywhere as a person before the law, including Baby A. That in Kenya, legal recognition is achieved through the issuance of statutory documents known as an acknowledgement of birth slip and a birth certificate which is issued by the 3rd Respondent, the Registrar of Births and Deaths, under Section 7 of the Registration of Births and Deaths Act (Cap 149 Laws of Kenya). That under Section 2(a) of that Act, the sex of a child is one of the prescribed particulars to be disclosed in Forms No. 1 and 7 used for registration of any birth. He thus claimed that it has become problematic for intersex children to be registered because the form only provides for male and female sex markers and therefore there is no mark for intersex children. He thus submitted that the said provision denies an intersex child such as Baby A, the right to legal recognition and violates Article 7 of the Convention on the Rights of the Child which provides that the child has a right to be registered immediately after birth and have the right to a name…
[3] In addition, Mr. Chigiti submitted that a birth certificate is of great importance in all spheres of life and development of a child because it is the ticket to admission in school, issuance of a passport, a national identity card, employment, etc and without that document and or legal recognition, a child cannot realize or enjoy the rights, protection and guarantees made under part II of the Childrens Act, the Bill of Rights and Article 7 of the Convention on the Rights of the Child… He also referred the Court to several international instruments which recognize and protect intersexual rights such as The Universal Declaration of Human Rights, The Convention on the Rights of the Child, the Convention on the Elimination of all Forms of Discrimination Against Women, the International Covenant on Civil and Political Rights, the African Charter on Human and People’s Rights and the Covenant on Economic and Social and Cultural Rights…
…
[6] It was also his [Mr. Chigiti, Baby A’s attorney] submission that whenever need arises for corrective surgery to be carried out on an intersexual child, then certain rules and regulations as set out under Article 19(2) of the UN Convention on the Rights of the Child must be followed. In support of that position, he relied on the Columbian of Case Sentencia No. T-551/99 where it was held that parents should be granted the right to consent to genital reconstruction surgeries on intersexual children under the age of five but that the decision should not be left to the full discretion of parents alone as it would be prone to abuse and instead that Courts ought to make declarations that all surgery on intersex infants that are therapeutic should be approved by a Court by way of judicial review. Further, that such a decision should be informed by set guidelines, the principle of parens patriae and the best interest of the child and in the event that there is disagreement as to whether or not to carry out corrective surgery, then there should be a moratorium and the operation postponed to a time when the child is able to participate in the decision making process.
…
[29] Mr. Mbithi presented the 2nd Interested Party’s [National Gender and Equality Commission’s] case and it was his submission that sex concerns biological make up and therefore includes the intersex condition whereas gender is linked to societal expectations. That in that regard, an intersex person does not belong to the conventional male or female sexes and is therefore entitled to legal recognition in Kenya as provided for under international instruments such as the Universal Declaration on Human Rights, Yogyakarat Principles, the Convention on the Rights of the Child, Convention on Elimination of all forms of Discrimination Against Women (CEDAW,)the International Covenant on Civil and Political Rights, African Charter on Human and People’s Rights and International Covenant on Economic, Social and Cultural Rights that form part of the laws of Kenya…
…
[70] I am aware that Article 53(2) of the Constitution has mandated all persons, including this Court, while deciding an issue involving a child to base their decisions on the best interest of the child. I have already stated elsewhere above that a child born as an intersex is no different from any other child and that under Article 53 of the Constitution and Section 11 of the Children Act, every child has the right to a name and nationality from birth which grants the child legal recognition and identity acquired through issuance of a birth certificate, a right to access health services and a right not to suffer discrimination of any form arising from their intersex status. These rights are buttressed by international instruments like the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child under Articles 7 and 9, respectively. The final orders to be made below are therefore issued in that context.
Follow Up:
Within 90 days of the judgment:
(1) the Attorney-General must submit to the Court information related to the body responsible for collecting and keeping data related to intersex persons;
(2) the Attorney-General must file a report to the Court on the status of a statute regulating the place of intersex as a sexual category and guidelines and regulations for corrective surgery for intersex persons; and
(3) the Registrar of Births and Deaths must submit a report to the Court about the registration of Baby A.
Notes:
This case was widely reported on by international media, both in 2013 when it was filed and when the decision was released in 2014. The judgment is seen as a “landmark ruling” and a “first step towards recognising intersex people”. See, for example:
http://allafrica.com/stories/201305241114.html
http://www.cnbcafrica.com/news/east-africa/2014/12/06/kenya-intersex-court/
Read CRIN’s case study on this case.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. The Court correctly recognised that all children are entitled under Article 7 to be registered immediately after birth. Furthermore, every child has the right to be free from discrimination of any kind, irrespective of his or her sex, birth or other status, under Article 2, and the best interests of the child must be a primary consideration in all actions concerning the child, according to Article 3.
Citation:
Baby ‘A’ (suing through the Mother E.A.) & another v. Attorney General & 6 others [2014] eKLR, petition no. 266 of 2013.
Link to Full Judgment:
http://kenyalaw.org/caselaw/cases/view/104234/
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.