Texas 2023 - 88th Regular

Texas House Bill HB1746 Compare Versions

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1	1	88R6321 AMF-D
2	2	By: Hernandez H.B. No. 1746
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 has capacity to understand the procedure or
80	80	treatment and is providing voluntary and informed consent absent
81	81	coercion from family members or medical staff; and
82	82	(3) the consent is in writing and includes the
83	83	following statements:
84	84	(A) "I (name of child) certify that I understand
85	85	(reprint of Subdivisions (1)(A)-(D)) and consent to (description of
86	86	medical procedure or treatment) to be performed or provided by
87	87	(name of physician) on (date the medical procedure or treatment is
88	88	scheduled to be performed or provided on the child).";
89	89	(B) "I (name of physician performing the
90	90	procedure or providing the treatment) certify that I have discussed
91	91	with (name of child and names of child's caregivers) (reprint of
92	92	Subdivisions (1)(A)-(D)) on (date the information was provided).";
93	93	and
94	94	(C) "I (name of mental health professional)
95	95	certify that I have discussed with (name of child and names of
96	96	child's caregivers) (reprint of Subdivisions (1)(A)-(D)) on (date
97	97	the information was provided). It is my professional opinion that
98	98	(name of child) actively desires (name of procedure or treatment)
99	99	and is capable of providing informed consent."
100	100	(b) The child's physician shall retain the original consent
101	101	in the child's medical record and provide a copy of the consent to
102	102	the child and the child's caregivers.
103	103	Sec. 266.054. COURT APPROVAL OF CERTAIN MEDICAL PROCEDURES
104	104	OR TREATMENTS. (a) If the department determines a foster child
105	105	should undergo a medical procedure or treatment related to an
106	106	intersex trait that is not medically necessary or the child wants to
107	107	undergo the procedure or treatment, the department or child may
108	108	file a petition with the court having continuing jurisdiction over
109	109	the child seeking court approval for the procedure or treatment.
110	110	(b) The court shall hold a hearing to determine whether the
111	111	proposed medical procedure or treatment related to an intersex
112	112	trait is in the child's best interest.
113	113	(c) The child must be represented by an attorney at the
114	114	hearing. The attorney for the child must:
115	115	(1) possess adequate knowledge of intersex traits, the
116	116	intersex population, and the range of medical procedures or
117	117	treatments available to treat the child's intersex trait, including
118	118	the option to delay any procedure or treatment;
119	119	(2) communicate with the child, to the extent possible
120	120	given the child's age, regarding:
121	121	(A) the nature of the proposed medical procedure
122	122	or treatment;
123	123	(B) whether and the extent to which the proposed
124	124	medical procedure or treatment is irreversible; and
125	125	(C) the projected outcome of, the possible risks
126	126	associated with, and the alternatives, including delay, to the
127	127	proposed medical procedure or treatment;
128	128	(3) interview the child, to the extent possible given
129	129	the child's age, to determine the child's wishes regarding the
130	130	pursuit or delay of any proposed medical procedure or treatment;
131	131	(4) assist the child, to the extent possible given the
132	132	child's age, in assessing the child's desires related to the child's
133	133	medical care and in communicating the child's desires to the court;
134	134	and
135	135	(5) for a child younger than 12 years of age who has
136	136	not been appointed a separate guardian ad litem, argue against a
137	137	proposed medical procedure or treatment that is not medically
138	138	necessary.
139	139	(d) If a guardian ad litem has been appointed for a child
140	140	younger than 12 years of age, the guardian ad litem must argue
141	141	against a proposed medical procedure or treatment that is not
142	142	medically necessary at the hearing.
143	143	(e) Any party to the suit may submit to the court a report or
144	144	introduce evidence from a qualified expert on:
145	145	(1) intersex traits and the intersex population in
146	146	general;
147	147	(2) the child's specific intersex traits;
148	148	(3) the range of medical procedures and treatments
149	149	available to treat the child's intersex traits, including delay;
150	150	(4) the specific medical procedure or treatment
151	151	proposed for the child, including the risks and anticipated
152	152	benefits associated with the procedure or treatment and the
153	153	possibility that the child's ultimate gender identity may differ
154	154	from the sex assigned;
155	155	(5) whether and the extent to which the medical
156	156	procedure or treatment:
157	157	(A) is irreversible; and
158	158	(B) may safely be delayed until the child is of an
159	159	age to participate in the decision-making process;
160	160	(6) the physician's duty to obtain informed consent
161	161	from the child and whether the duty has been adequately discharged;
162	162	and
163	163	(7) the public statements of intersex individuals or
164	164	patient advocates regarding Subdivisions (1)-(6).
165	165	(f) Following the hearing, the court shall determine
166	166	whether the proposed medical procedure or treatment related to an
167	167	intersex trait is in the child's best interest and render an order
168	168	with specific findings on:
169	169	(1) whether clear and convincing evidence establishes
170	170	that the short-term or long-term physical benefits of the proposed
171	171	medical procedure or treatment outweigh the short-term or long-term
172	172	physical risks;
173	173	(2) whether clear and convincing evidence establishes
174	174	that the short-term and long-term psychological benefits of the
175	175	proposed medical procedure or treatment outweigh the short-term or
176	176	long-term psychological risks;
177	177	(3) the extent to which the proposed medical procedure
178	178	or treatment would limit the child's future options for:
179	179	(A) fertility;
180	180	(B) development or construction of
181	181	female-typical characteristics;
182	182	(C) development or construction of male-typical
183	183	characteristics; and
184	184	(D) preservation of body characteristics
185	185	unaltered by decisions the child did not initiate; and
186	186	(4) whether clear and convincing evidence establishes
187	187	that any limitation identified under Subdivision (3) is justified
188	188	by an urgent need for the proposed medical procedure or treatment.
189	189	(g) If the requirements of Section 266.053 are satisfied,
190	190	the court may consider the child's consent to the proposed medical
191	191	procedure or treatment related to an intersex trait as clear and
192	192	convincing evidence for purposes of the court's best-interest
193	193	determination under Subsection (f).
194	194	Sec. 266.055. FOSTER CHILD'S CONSENT TO MEDICAL PROCEDURE
195	195	OR TREATMENT. Notwithstanding Section 32.003 or 266.004 or other
196	196	law, a foster child may consent to a medical procedure or treatment
197	197	related to an intersex trait if the child provides voluntary and
198	198	informed consent to the proposed medical procedure or treatment in
199	199	accordance with Section 266.053.
200	200	SECTION 3. This Act takes effect immediately if it receives
201	201	a vote of two-thirds of all the members elected to each house, as
202	202	provided by Section 39, Article III, Texas Constitution. If this
203	203	Act does not receive the vote necessary for immediate effect, this
204	204	Act takes effect September 1, 2023.