Baby A and The Cradle-The Children Foundation v. Attorney General, Kenyatta National Hospital, and the Registrar of Births and Deaths

Baby “A” was born with both male and female genitalia. Kenyatta National Hospital issued the baby’s mother with various documents used in the process of carrying out genitogram tests, x-rays, and scans on the baby, and a question mark was entered in the column indicating the child’s sex. To date, the child has never been issued a birth certificate. The petitioners requested a declaration of the court that the Constitution protects and recognizes intersex children. The petitioners claimed that the entry of a question mark on the child’s medical treatment notes offended the child’s rights to legal recognition, eroded their dignity, and violated the right of the child not to be subjected to inhuman and degrading treatment. The petitioners argued that corrective surgery for intersex children was not necessary unless there was a therapeutic need to conduct the surgery. Finally, they argued that forced genital normalization, involuntary sterilization, unethical experimentation, medical display, reparative therapies, and conversion therapies often lead to irreversible changes to the body and interferes with a child’s right to family and reproductive health rights generally. The court, noting the “silent issues faced by intersex” people stated that an intersex children are “no different than any other” children with a constitutional right to legal recognition and the benefits of nationality, including the right not to face intersex discrimination. However, the court found that the respondent did not violate the petitioners’ fundamental rights and freedom because there was no evidence that the child’s mother had tried to obtain, and therefore had never been unlawfully denied, the child’s legal documents. The court first ordered the First Respondent to report to the court within 90 days about (i) the agency responsible for collecting data on intersex people, (ii) a legislative proposal for registering intersex people as a sexual category, and (iii) a legislative proposal for intersex “corrective surgery” regulations. Second, the court ordered the child’s mother to register the with the Third Respondent and file a copy of the approved registration with the court within 90 days.