Texas 2021 - 87th Regular

Texas House Bill HB726 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	87R2859 MCK-D
2	2	By: Hernandez H.B. No. 726
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to prohibited nonconsensual medical procedures and
8	8	treatment on certain minors with intersex traits.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 266, Family Code, is amended by
11	11	designating Sections 266.001 through 266.013 as Subchapter A and
12	12	adding a subchapter heading to read as follows:
13	13	SUBCHAPTER A. GENERAL PROVISIONS; EDUCATIONAL SERVICES; MEDICAL
14	14	CARE
15	15	SECTION 2. Chapter 266, Family Code, is amended by adding
16	16	Subchapter B to read as follows:
17	17	SUBCHAPTER B. MEDICAL PROCEDURES AND TREATMENTS RELATED TO
18	18	INTERSEX TRAITS
19	19	Sec. 266.051. DEFINITIONS. In this subchapter:
20	20	(1) "Intersex trait" means an inborn chromosomal,
21	21	gonadal, genital, or endocrine characteristic, or a combination of
22	22	those characteristics, that is not suited to the typical definition
23	23	of male or female or is atypical for the sex assigned to an
24	24	individual.
25	25	(2) "Medical procedure or treatment related to an
26	26	intersex trait" includes:
27	27	(A) hormonal treatment to treat or modify an
28	28	intersex trait; or
29	29	(B) genital surgery, including:
30	30	(i) clitorectomy, clitoroplasty, clitoral
31	31	reduction, and clitoral recession, including corporal-sparing
32	32	procedures;
33	33	(ii) vaginoplasty, introitoplasty, vaginal
34	34	exteriorization, and partial or total urogenital sinus
35	35	mobilization;
36	36	(iii) labiaplasty and labial reduction;
37	37	(iv) hypospadias surgery, relocation of the
38	38	urethral meatus, and chordee release;
39	39	(v) phalloplasty; and
40	40	(vi) gonadectomy, including of testes,
41	41	ovaries, ovotestes, or streak gonads.
42	42	(3) "Medically necessary" means a medical procedure or
43	43	treatment immediately necessary to treat an injury, illness,
44	44	disease, or condition affecting a child's health that if delayed
45	45	would adversely affect the child's physical health.
46	46	Sec. 266.052. REQUIREMENTS FOR CERTAIN MEDICAL PROCEDURES
47	47	OR TREATMENTS. A physician may not perform a medical procedure or
48	48	treatment related to an intersex trait on a foster child unless:
49	49	(1) the procedure or treatment is medically necessary
50	50	and the child consents to the procedure or treatment; or
51	51	(2) for a procedure or treatment that is not medically
52	52	necessary, the child consents to the procedure or treatment and a
53	53	court authorizes the procedure or treatment as provided under this
54	54	subchapter.
55	55	Sec. 266.053. INFORMED CONSENT. (a) Consent to a medical
56	56	procedure or treatment related to an intersex trait is voluntary
57	57	and informed only if:
58	58	(1) the physician provides to the child and the child's
59	59	caregivers the information necessary for the child to provide
60	60	voluntary and informed consent to the procedure or treatment,
61	61	including:
62	62	(A) the nature of the proposed procedure or
63	63	treatment, including whether and the extent to which the procedure
64	64	is irreversible;
65	65	(B) the goals of the procedure or treatment,
66	66	including whether the benefits of the proposed procedure or
67	67	treatment are medical, psychological, or social, and the strength
68	68	of the evidence supporting claims that the procedure provides each
69	69	of those benefits;
70	70	(C) the possible risks associated with the
71	71	procedure or treatment, including, if applicable, risk from
72	72	anesthesia, loss of reproductive capacity, and loss of sexual
73	73	function or sensation; and
74	74	(D) the alternatives to the proposed procedure or
75	75	treatment, including delay of the procedure or treatment;
76	76	(2) on at least two separate occasions a mental health
77	77	professional with previous experience treating individuals with
78	78	intersex traits evaluates the child and the child's caregivers to
79	79	ensure the child:
80	80	(A) does not have an undiagnosed mental health
81	81	condition; and
82	82	(B) has capacity to understand the procedure or
83	83	treatment and is providing voluntary and informed consent absent
84	84	coercion from family members or medical staff; and
85	85	(3) the consent is in writing and includes the
86	86	following statements:
87	87	(A) "I (name of child) certify that I understand
88	88	(reprint of Subdivisions (1)(A)-(D)) and consent to (description of
89	89	medical procedure or treatment) to be performed or provided by
90	90	(name of physician) on (date the medical procedure or treatment is
91	91	scheduled to be performed or provided on the child).";
92	92	(B) "I (name of physician performing the
93	93	procedure or providing the treatment) certify that I have discussed
94	94	with (name of child and names of child's caregivers) (reprint of
95	95	Subdivisions (1)(A)-(D)) on (date the information was provided).";
96	96	and
97	97	(C) "I (name of mental health professional)
98	98	certify that I have discussed with (name of child and names of
99	99	child's caregivers) (reprint of Subdivisions (1)(A)-(D)) on (date
100	100	the information was provided). It is my professional opinion that
101	101	(name of child) actively desires (name of procedure or treatment)
102	102	and is capable of providing informed consent."
103	103	(b) The child's physician shall retain the original consent
104	104	in the child's medical record and provide a copy of the consent to
105	105	the child and the child's caregivers.
106	106	Sec. 266.054. COURT APPROVAL OF CERTAIN MEDICAL PROCEDURES
107	107	OR TREATMENTS. (a) If the department determines a foster child
108	108	should undergo a medical procedure or treatment related to an
109	109	intersex trait that is not medically necessary or the child wants to
110	110	undergo the procedure or treatment, the department or child may
111	111	file a petition with the court having continuing jurisdiction over
112	112	the child seeking court approval for the procedure or treatment.
113	113	(b) The court shall hold a hearing to determine whether the
114	114	proposed medical procedure or treatment related to an intersex
115	115	trait is in the child's best interest.
116	116	(c) The child must be represented by an attorney at the
117	117	hearing. The attorney for the child must:
118	118	(1) possess adequate knowledge of intersex traits, the
119	119	intersex population, and the range of medical procedures or
120	120	treatments available to treat the child's intersex trait, including
121	121	the option to delay any procedure or treatment;
122	122	(2) communicate with the child, to the extent possible
123	123	given the child's age, regarding:
124	124	(A) the nature of the proposed medical procedure
125	125	or treatment;
126	126	(B) whether and the extent to which the proposed
127	127	medical procedure or treatment is irreversible; and
128	128	(C) the projected outcome of, the possible risks
129	129	associated with, and the alternatives, including delay, to the
130	130	proposed medical procedure or treatment;
131	131	(3) interview the child, to the extent possible given
132	132	the child's age, to determine the child's wishes regarding the
133	133	pursuit or delay of any proposed medical procedure or treatment;
134	134	(4) assist the child, to the extent possible given the
135	135	child's age, in assessing the child's desires related to the child's
136	136	medical care and in communicating the child's desires to the court;
137	137	and
138	138	(5) for a child younger than 12 years of age, argue
139	139	against a proposed medical procedure or treatment that is not
140	140	medically necessary.
141	141	(d) Any party to the suit may submit to the court a report or
142	142	introduce evidence from a qualified expert on:
143	143	(1) intersex traits and the intersex population in
144	144	general;
145	145	(2) the child's specific intersex traits;
146	146	(3) the range of medical procedures and treatments
147	147	available to treat the child's intersex traits, including delay;
148	148	(4) the specific medical procedure or treatment
149	149	proposed for the child, including the risks and anticipated
150	150	benefits associated with the procedure or treatment and the
151	151	possibility that the child's ultimate gender identity may differ
152	152	from the sex assigned;
153	153	(5) whether and the extent to which the medical
154	154	procedure or treatment:
155	155	(A) is irreversible; and
156	156	(B) may safely be delayed until the child is of an
157	157	age to participate in the decision-making process;
158	158	(6) the physician's duty to obtain informed consent
159	159	from the child and whether the duty has been adequately discharged;
160	160	and
161	161	(7) the public statements of intersex individuals or
162	162	patient advocates regarding Subdivisions (1)-(6).
163	163	(e) Following the hearing, the court shall determine
164	164	whether the proposed medical procedure or treatment related to an
165	165	intersex trait is in the child's best interest and render an order
166	166	with specific findings on:
167	167	(1) whether clear and convincing evidence establishes
168	168	that the short-term or long-term physical benefits of the proposed
169	169	medical procedure or treatment outweigh the short-term or long-term
170	170	physical risks;
171	171	(2) whether clear and convincing evidence establishes
172	172	that the short-term and long-term psychological benefits of the
173	173	proposed medical procedure or treatment outweigh the short-term or
174	174	long-term psychological risks;
175	175	(3) the extent to which the proposed medical procedure
176	176	or treatment would limit the child's future options for:
177	177	(A) fertility;
178	178	(B) development or construction of
179	179	female-typical characteristics;
180	180	(C) development or construction of male-typical
181	181	characteristics; and
182	182	(D) preservation of body characteristics
183	183	unaltered by decisions the child did not initiate; and
184	184	(4) whether clear and convincing evidence establishes
185	185	that any limitation identified under Subdivision (3) is justified
186	186	by an urgent need for the proposed medical procedure or treatment.
187	187	(f) If the requirements of Section 266.053 are satisfied,
188	188	the court may consider the child's consent to the proposed medical
189	189	procedure or treatment related to an intersex trait as clear and
190	190	convincing evidence for purposes of the court's best-interest
191	191	determination under Subsection (e).
192	192	Sec. 266.055. FOSTER CHILD'S CONSENT TO MEDICAL PROCEDURE
193	193	OR TREATMENT. Notwithstanding Section 32.003 or 266.004 or other
194	194	law, a foster child may consent to a medical procedure or treatment
195	195	related to an intersex trait if the child provides voluntary and
196	196	informed consent to the proposed medical procedure or treatment in
197	197	accordance with Section 266.053.
198	198	SECTION 3. This Act takes effect immediately if it receives
199	199	a vote of two-thirds of all the members elected to each house, as
200	200	provided by Section 39, Article III, Texas Constitution. If this
201	201	Act does not receive the vote necessary for immediate effect, this
202	202	Act takes effect September 1, 2021.