In a case that raises questions of law,culture, and medicine, a doctor in China has been convicted of assault for performing a sex change operation at the request of his 15 year old patient, without parental consent. On February 4, Dr. TIAN Fengrui was sentenced to a term of three years imprisonment, which will be commuted if he can first successfully complete a four year probationary period. He has already paid the teen’s family 650,000 RMB ($98,914) in compensation.
The teenager, sometimes called Xiao Nan in the domestic press, is said to have detested being male, and even before the surgery, was acting on his own initiative to take medications such as spironolactone and ethylestrenol that he hoped would suppress his body’s male hormones. When Xiao Nan began seeking out transgender communities online and inquiring about doctors able to perform sex reassignments, it wasn’t long before he was contacted by Dr. Tian and quoted an affordable price: 2000 RMB ($300). In May 2014, Xiao Nan travelled to have the operation without his parents’ knowledge, only telling them after the surgery was completed. When his father found out, he called the police.
There is no question that the surgery was performed unlawfully, but whether assault, the intentional infliction of physical harm, is the proper charge, and how to properly view the ‘damages’ , is much more contentious. While details of the case aren’t entirely clear, it appears that Dr. Tian successfully removed Xiao Nan’s testicles, and that their removal is the only ‘injury’ considered in the case.
The first legal authority to specifically address sex change surgeries in China was the Ministry of Health’s 2009 “Technical and Management Specifications for Sex Change Surgeries”. That regulation contains strict requirements for hospitals, doctors and patients participating in such operations—many of which were violated in Xiao Nan’s operation.
For example, candidates for sex reassignment are required to be at least 20 years-old and to have first informed immediate family members of the pending surgery. Other more burdensome requirements on prospective patients include showing that they have consistently requested the operation for 5 years, and have first undergone 1 year of psychiatric or psychological treatment, all of which would make Xiao Nan ineligible.
Moreover, Dr. Tian, who performed the surgery, not only lacked the required 10 years’ relevant experience; but was only an intern practicing at a small cosmetic surgery clinic operated by his wife, and not even a fully licensed physician. He performed the operation alone without mandated assistance, and the clinic where he performed the surgery was unqualified for such an operation. While the regulations contain no specific penalties their violation, shortly after the case was discovered, the local ministry of health revoked the clinic’s permits and fined it 3000 RMB ($456).
The 2009 regulations were aimed to create standards of care in sex reassignment surgeries and curtail a growing gray market in substandard care, but they may have unintentionally had the opposite impact, creating a larger market for underground clinics. A 2014 article in the Lancet articulates concerns that the small number of operations officially performed to date (around 800 in 30 years) may reflect surgeries being performed off the books in unqualified facilities or patients going abroad for cheaper and less regulated alternatives. At the time of the regulations’ release, only a few dozen hospitals would have been eligible to lawfully perform the operation, and the costs were prohibitively high, ranging from 100,000 to 150,000 yuan (US$14,632 to US$21,947). For minors like Xiaonan, there is no legal alternative even with a parent’ consent.
In choosing to prosecute Dr. Tian for an assault, however, the prosecution elected not to use seemingly more appropriate charges in China’s criminal law, such as ‘practicing medicine without a license’ or ‘criminal malpractice’. Penalties similar to those that Tian received for assault can be imposed under these offenses which address injuries caused by unqualified practitioners or through severe negligence, whereas ‘assault’ requires the intentional infliction of a physical injury.
Curiously, the question of whether performing a sex change operation can amount to an assault was previously a hot topic in Chinese legal circles. In 2008, prior to the release of the sex change regulations, authoritative official preparatory materials for the unified national judicial examination clearly indicated that sex changes were not a legitimate medical procedure, meaning that doctors performing such operations might be subject to assault charges. Although no real conclusions were reached, a number of scholars weighed in on whether assault charges would ever be appropriate in these situations.
Some, such a Professor HAN Youyi of China Public Security University were confident that assault charges should be pressed whenever doctors performed sex reassignments. He viewed the desire to change sexes as a psychological condition requiring psychological treatment, and seeing no legitimate medical purpose, he viewed surgical solutions as simply an intentional harm to an otherwise physically healthy body.
Professor HAN further explained that while everyone has the right to consent to a certain degree of harm to their own person, such as by competing in contact sports or letting someone hit them, the scope of that consent is limited by the law. Assisted suicide, for example, is illegal in China, showing that one cannot consent to let another kill them, and similarly , he argued, one cannot allow another to damage or remove their sex organs. The release of the Ministry of Health regulations one year later, legitimizing sex-changes surgeries, would seem to undermine much of this argument.
Other scholars emphasized the issue of intent, saying that a doctor performing a sex change operation lacked the intention to harm required to establish the offense. Peking University professor CHEN Xingliang, thought that because the doctors were acting with the subjective intent to relieve the suffering of their patient, they couldn’t be found guilty of assault. Similarly, Professor YUAN Jilin felt there would need to be a case by case inquiry into the purpose of the surgery to determine the purpose. Both seemed to agree that some level of malice is needed to satisfy the ‘intent’ requirement of the offense, rather than just the intent to alter the body with a scalpel.
It isn’t clear whether the court made any inquiry into Dr. Tian’s motivations in performing the surgery, but from what is known of the case, it appears that Dr. Tian was a compassionate, if not qualified, physician. Not only did he greatly reduce the price of the operation for Xiao Nan, suggesting he wasn’t overly financially motivated, but he also remained in daily contact after the surgery, once even travelling over a hundred kilometers to deliver additional anti-inflammatory medicine. He also is said to have repeatedly discussed the irreversible consequences of the surgery to make sure Xiao Nan understood what he was doing. Xiao Nan, continues to support and be thankful to Dr. Tian, having actively contacting authorities throughout the investigation and trial to plead for leniency.
Of course, Dr. Tian’s kindness could also have been motivated by self-interest in keeping an illicit patient healthy and happy so as to discourage their contact with the authorities. His anticipation of possible legal consequences is evidenced by his having Xiao Nan complete an informal consent and liability waiver prior to the surgery, which was found stored along with similar forms from several other illegal sex-change patients. In some versions of the reporting, it is also said that he went so far as to have Xiao Nan first injure his own testicles, and mention in the waiver that their removal was medically necessary in light of the injury- possibly trying to avoid the requirements of the regulation on sex reassignments.
Any consent given be Xiao Nan would be invalid as the teen was below the age of civil competency. This is true even though he was living independently of his parents before the surgery. And while Dr. Tian claimed to have been unaware of Xiao Nan’s minority, a copy of Xiao Nan’s identification attached to the consent form, clearly showed a birthdate in 2000, makes this claim difficult to believe.
More importantly, does Xiao Nan’s age and lack of civil capacity mean that the otherwise consensual surgery was tantamount to an attack as the charge of assault suggests? It’s clear that the surgical alteration of a persons’ genitals could be a serious assault if done without their consent , such as when four residents at an eldercare facility had their testicles forcibly removed by an orderly in 2014. Similarly, there are rare cases where doctors use the vulnerability of their patients undergoing medical procedures to attack them, such as where a US neurosurgeon intentionally botched operations to injure his patients. Xiao Nan’s situation , however, seems quite different both in that he desired surgery, and that Dr. Tian seems to lack the requisite intent to harm discussed by Professors Chen and Yuan.
The law does sometimes recognize that the inability of minors to consent can transform otherwise lawful conduct into a felony. Statutory rape laws found in many jurisdictions are a prime example, where even “consensual” sex between an adult and a minor will be prosecuted as rape regardless of the expressed subjective desires of the parties. In such cases, the minor is considered too young to be able to consent, and the power imbalance between the parties is seen as making the situation inherently coercive.
If this is the logic behind the decision in Xiao Nan’s case, however, would the same charge be appropriate if he’d only sought a cosmetic procedure such as a nose job? Perhaps it would, although the parents might be less likely to seek out the authorities if nothing went wrong, and the harm would be viewed differently.
A brief search of the internet turned up no other Chinese cases of doctors charged with assault for successfully performing other surgeries on a minor without parental consent. It did however; reveal a case similar to Xiao Nan’s, applying a similar charge and penalty, suggesting that this case is not a unique occurrence, although it is unclear if the patient in that case was a minor. In trying to understand why the assault charge was used, rather than unlawful practice of medicine or criminal malpractice, one can’t help but wonder if the underlying issue isn’t that the surgery is still not quite fully perceived as a valid medical procedure.
A few personal observations:
1. Paragraph 2 of Article 234-A of the Criminal Law, as added by Article 37 of Criminal Law Amendment 8, provides that “whoever […] removes any organ of a person under the age of 18 […] shall be convicted and punished according to the provisions of Articles 234 [on assault] and 232 [on intentional homicide] of this Law.”
2. After the promulgation of Amendment 8, SPC and SPP promulgated the Fifth Supplementary Provisions on Implementing the Crime Names Stipulated by the Criminal Law (see https://zh.wikisource.org/wiki/最高人民法院、最高人民检察院关于执行《中华人民共和国刑法》确定罪名的补充规定（五）), in which they added a new crime name for Paragraph 1 of Article 234-A, but NOT a new crime name for Paragraph 2 nor for Paragraph 3.
3. The reason for this apparently deliberate omission might be because the crimes stipulated by Paragraphs 2 and 3 are to be prosecuted under the names of other crimes, as required by the language of the Law. The result, as relevant to the case of Xiao Nan, would probably be that the doctor was prosecuted for assault under Article 234-A, Paragraph 2, but NOT under Article 234.
4. Also, it seems that the language of Paragraph 2 makes this crime of assault one of strict liability, much like statutory rape.
5. Nevertheless, I am not quite sure if removing testicles during an illegal sex change operation would count as “摘取” organs or not. And it appears to me that the whole purpose of legislating Article 234-A is to punish the acts of illegally harvesting organs for organ transplants, not those involved in this case.
Interesting, I feel like the context of 234-1 makes it clear that it is about harvesting organs, although from it’s plain language an argument might be made. I think that Dr. Tian was punished under 234, the court mentions a second degree serious injury rather than emphasizing the organ removal in particular, and harm to both testes resulting in loss of reproductive capacity is listed as a second degree harm.
An interesting comparison that I didn’t include above might be to US abortion laws restrictions on minors receiving the surgery. It is another situation where the cultural sensitivity of the specific surgery might result in doctors being punished in an atypical fashion.