Baby “A” (suing through her mother, E.A.), et al.v. Attorney General, et al.

Baby A, was born with both male and female genitalia. The respondent, Kenyatta National Hospital issued E.A (the mother of Baby A) documents used in the process of carrying out genitogram tests, x-rays and scans of the Baby A in which the column indicating the child’s sex was filled in with a question mark. Baby A had never been issued a birth certificate.

The petitioners- Baby A, through the mother and the CRADLE approached 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, dignity and freedom from inhuman and degrading treatment. Moreover, the failure of legislation such as the Registration of Births and Deaths Act (RBDA), Cap 149 of the Laws of Kenya, to recognise intersex children infringed upon various rights of children guaranteed under the Constitution of Kenya, and also under various international human rights treaties. The petitioner contended that he has a right to be issued a birth certificate in consonance with the best interest principle guaranteed under Section 4 of the Kenyan Children Act. Moreover, Article 27 of the Constitution prohibits discrimination against any person on a number of grounds, including sex; Article 28 guarantees the right to live with dignity and Article 29 prohibits cruel, inhuman and degrading treatment. The petitioner also sought for guidelines, rules and regulations for surgery on persons with intersex conditions.

The High Court of Kenya held that Baby A and other intersexual persons are entitled to all the rights guaranteed under the Constitution but the Court stated that to create a third categorization of sex would go beyond the power of the court. The Court found that the petitioners had failed to produce evidence proving any specific violation of Baby A’s fundamental rights and proving that there were attempts of registration, which were denied; hence the petition failed. The court acknowledged the need for development of rules and guidelines on corrective surgeries for intersex children. The court therefore ordered the Attorney General to bring before it information related to the organ, agency, or institution responsible for collecting and keeping data related to intersex persons. Additionally, the court ordered the Attorney General to file a report on the update of a statute regulating intersex as a sex category and guidelines and regulations for any corrective surgery for intersex persons. Finally, the Court ordered that the Petitioner file an application for registration of Baby A by the Registrar of Births and Deaths, and that a report of this be filed with the Court within 90 days of the judgment.

The Court in dealing with the central claim of the petition held that Baby A suffered from lack of legal recognition due to having an intersex condition. The Court determined that Baby A was an intersex person based on the fact that a laboratory report/form indicated a question mark in the category of the sex of the child, showing that there was ambiguity about the sex of the child. Although the Notification of Birth form indicated that Baby A was male, the Court determined that that outcome was due to the societal expectations that babies be categorised as male or female. The Court followed the reasoning in the RM v. The Hon. Attorney General and Four Others (RM case), Petition no 705 of 2007 where the Court had held that sex is fixed at the time of birth and it was not within the mandate of the court to expand the meaning of “sex” to include intersex, but it was the mandate of the Parliament.

The Court on the issue of whether it should issue guidelines on corrective surgeries for babies with intersex conditions was of the view that it was not within its mandate. However, the Court went on to say that it would nevertheless grant appropriate relief in accordance with Article 23(3) of the Constitution because it was a matter of rights. The Court proposed that people with intersex conditions be recognised as such under the law. It further stated that it is the duty of the state to protect the rights of intersex persons by putting in place a legal framework which would govern issues such as their registration, medical examinations, and corrective surgeries. The Court urged Parliament to enact the necessary legislative framework.

“The issues raised in the present Petition must be looked at in the wider context of the place of intersexuals in our society as opposed to the narrower and specific interests of Baby A who is only one such person in our Society.” (Para 61)

“Whereas this Court can find and has found that Baby A and intersexuals are entitled to all rights under the Bill of Rights, to go further and create, by a judgment such as this one, a third categorization of sex would in my view be overstretching the mandate of this Court.” (Para 62).

“[T]ime is now ripe for the development of rules and guidelines on corrective surgeries for intersex children especially minors such as Baby A. To my mind, the fact that an intersex person as defined elsewhere above does not fall within the definite criterion as being distinctively male or female should not negate his right as a human being in whom rights and freedoms are inherent.” (Para 66).

“I agree and as admitted, there is currently no legal framework on intersex persons or any policies in place for them. It is the duty of the State to protect children born as intersexuals by providing a legal framework to govern issues such as their registration under the Births and Deaths Registration Act, examinations and tests by doctors, corrective surgeries etc. It is on this basis that it behoves upon me to direct the Government towards an appropriate legal framework governing issues related to intersex children based on internationally acceptable guidelines.” (Para 67)

“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.” (Para 70)