MC v. Aaronson

M.C.

MC v. Aaronson is a groundbreaking lawsuit against the South Carolina Department of Social Services, Greenville Hospital System, Medical University of South Carolina and individual employees, including Dr. Ian Aaronson, over a sexual reassignment/normalization surgery performed on a baby born with Intersex traits, while the baby was in the custody of the state.

It is the first lawsuit of its kind filed on behalf an intersex child who was given sex assignment surgery while too young to give informed consent.

Background

M.C. was born a premature twin at Greenville Memorial Hospital in November 2004. The biological parents would not take them home. One baby died. M.C. was abandoned in the Neonatal Intensive Care Unit.

Three months later, the Department of Social Services stepped in. Court records show the biological parents relinquished their rights.

Court records indicate that at birth, M.C. was identified as a male. During a reflux surgery, "female organs were discovered" (In current nomenclature, this is referred to as Ambiguous genitalia). Doctors at the Greenville Hospital System concluded the baby was a "true hermaphrodite." (The word 'hermaphrodite' is no longer used to describe intersex or DSD conditions because it's biologically inexact and also offensive). M.C. was born with a relatively rare intersex disorder called ovotesticular DSD, which doctors say makes it particularly difficult to predict gender.

They referred the case to the Medical University of South Carolina where ultimately, sex re-assignment surgery was performed in April 2006 on the then 1-year-old.

Mark and Pam Crawford adopted M.C. a few months later.

Surgery

M.C.'s biological mother consented to the surgery and a South Carolina family court judge signed an order relative to the surgery following a hearing on April 12, 2006.

On April 18, 2006, when M.C. was 16 months old, Dr. Ian Aaronson operated on him at the Medical University of South Carolina (MUSC). He reduced M.C.’s penis to look more like a clitoris (Clitoroplasty), cut up his scrotum to form labia, and removed his internal testicle tissue (Orchiectomy). Two other specialists also treated M.C.: Dr. Yaw Appiagyei-Dankah, who worked at MUSC, and Dr. James Amrhein from Greenville Hospital.

He had been identified as a boy at birth because of his “rather large” penis. Routine blood tests showed his testosterone levels were extremely elevated. However, he had a small vaginal opening beneath his penis and both ovarian and testicular tissue.

The doctors debated for 4 months over what sex they should assign to M.C. Two deciding factors were the fact that the foster parents were raising the toddler as a girl and the child’s vagina seemed fully formed.

According to court documents, the decision to assign M.C. as female never went before a judge. No guardian was appointed. And it does not appear the doctors requested an ethical consultation.

Bioethicist Carmela Epright said, "I suspect strongly the reason this didn't go before a judge is because no one thought this was a hard question. They thought they had the answer. He wasn't sick in any way. What he was, was a problem from an adoption standpoint."

Gender dissatisfaction

From early age M.C. (then named S) showed signs of identifying as a boy. The Crawfords told The Atlantic: "S didn’t want braided hair; S wanted a haircut “like dad’s.” At Halloween, S wanted to be a superhero, but not Wonder Woman. S wanted to use the men’s bathroom and liked to be referred to as a boy. S already tended to be perceived as a boy by strangers, after requesting a buzz cut about a month before the family’s vacation."

At age 7, M.C. requested to be allowed to try out "being a boy" during a vacation stay.

When the family arrived back home in South Carolina, M.C. kept up his requests to be a boy, first at gymnastics class, then at the family’s Jewish temple and at school. His parents helped as M.C. told the world step-by-step what he had known all along.

In retrospect, Mark Crawford said, “He never gave us any indication that he was not a boy.”

Lawsuit

The Crawfords filed federal and state lawsuits in 2013 against MUSC, Greenville Health System and DSS.

The fact that M.C. was in foster care and treated in state-run hospitals allowed the federal court case to claim a breach of his constitutional rights. The case was accepted by the district court to go to trial, but the decision was appealed. If M.C.’s case were successful, it would set a precedent that surgery on intersex children is unconstitutional in at least some situations, such as when it is very difficult to predict gender.

The suit filed in federal court alleged that the defendants violated the child's right to privacy by deciding to go forward with the surgery. The state suit alleges medical malpractice and gross negligence.

M.C.’s lawsuit–supported by the Southern Poverty Law Center, among others–brought § 1983 claims against all defendants, alleging that they violated substantive and procedural due process rights guaranteed to M.C. by the 14th Amendment. It also charged that that the doctors committed medical malpractice by failing to obtain adequate informed consent before proceeding. The District Court for the District of South Carolina denied the defendants’ motions to dismiss and rejected their defense of qualified immunity.

Advocates for Informed Choice (AIC) is working with the SPLC on behalf of the Crawfords. The AIC is an organization that specializes in advocating for the rights of intersex children, according to its director and founder, Anne Tamar-Mattis.

On January 26, 2015, the Court of Appeals for the Fourth Circuit reversed and remanded with instructions to dismiss the complaint. The Fourth Circuit stated that it did not “mean to diminish the severe harm that M.C. claims to have suffered” but that a reasonable official in 2006 did not have fair warning from then-existing precedent that performing sex assignment surgery on sixteen-month-old M.C. violated a clearly established constitutional right. According to Post Courier, "Defense lawyers successfully argued that doctors weren’t aware when they operated that they may have violated M.C.’s civil rights."

Meanwhile, the state lawsuit in Richland County is moving forward. DSS denies the allegations, court records show. The case may be tried by a jury sometime after Nov. 15.

"The reason we’re doing this is so some change is made. That’s really what we see as what’s important," Pam Crawford said. "To make a settlement and make it a private thing, it’s not what we want to accomplish with this."

The Crawfords also want money to pay for treatment that M.C. will need during and after puberty, but they have not named a specific amount in their lawsuit. They don’t yet know what his treatment will entail or how much it will cost.

Statement from the Greenville Hospital System

In April of 2014, Dr. William F. Schmidt, medical director of the GHS Children's Hospital, sent WYFF a statement saying, "A thorough review of the medical files will show that treatment this child received while under our care was consistent with the highest standards of medical practice and medical ethics."

Conclusion

After four years of litigation (including a lengthy discovery process), the Parties agreed that it was mutually beneficial to amicably resolve this case. This case has been resolved and dismissed with no admission of liability or wrongdoing on the part of the Medical University of South Carolina, South Carolina Department of Social Services, or any of the physicians and/or employees.

See also

• Ambiguous genitalia
• DSD
• Genital normalization surgeries
• Ian Aaronson
• Intersex
• Ovotesticular DSD
• The Crawfords Speak About Groundbreaking Intersex Case