Changing the law on hymenoplasty - reflections from the independent expert panel

Last month the government announced an amendment to the Health and Care Bill, based on the recommendation of an independent expert panel, that will make hymenoplasty illegal. IHPN’s Director of Regulation, Dawn Hodgkins, was invited to join the independent expert panel and represent the independent sector in the discussions concerning a hymenoplasty ban –  a fascinating experience in seeing first-hand how policy on a complex healthcare issues (with significant ethical and legal ramifications) is developed.

Hymenoplasty is a surgical procedure that involves reconstructing the hymen – usually done with the aim of making a women appear to be a virgin and based on inaccurate beliefs about the link between an intact hymen and virginity. It is closely associated with ‘virginity testing’, as these procedures are often performed in order to ensure a woman will ‘pass’ these tests, even though there is no scientific basis for using the appearance of the hymen to determine if a woman has had sexual intercourse. Virginity testing is not a medically indicated procedure and the World Health Organisation (WHO) has declared that it is violation of women and girls’ human rights.

Although there is clear evidence that these procedures are available in the UK, there is limited data available on how many hymenoplasties are carried out each year. While providers are not likely to encounter requests for these procedures frequently, it is important that they have policies in place to respond to such requests. The development of the policy to ban hymenoplasty also raises important issues concerning informed consent and what constitutes ‘freely consenting’. Ensuring that people are giving consent without undue influence or outside pressure will make care safer and help protect vulnerable people.

As part of the panel, we heard case study evidence from Karma Nirvana and IKWRO Women’s Rights Organisation, two third sector organisations that work to prevent and help women affected by ‘honour’ based abuse. This evidence included stories from women who had been forced to undergo virginity testing and hymenoplasty and had been subject to horrific abuse from relatives as a result of the perceived ‘shame’ that had been brought on the family. In some cases, this has led to honour-based killings or led women to die by suicide – clearly demonstrating the direct link between hymenoplasty and violence against women and girls.

Although it is clear that hymenoplasty causes significant harm, the panel still had to consider whether a criminal prohibition was the best way to address this harm. Arguments against banning hymenoplasty included concerns that this would drive the practice underground, making it less safe for women, and that hymenoplasty can provide women living in highly oppressive conditions more freedom by allowing them to conceal past sexual activity and potentially avoid experiencing violence. We also considered the value of autonomy and the impact that a prohibition on hymenoplasty could have on a woman’s ability to choose what to do with her body. Hymenoplasty was compared with cosmetic surgery, as it accepted that some women choose to have cosmetic procedures because of potentially harmful cultural pressures to look a certain way.

Ultimately, the panel found that hymenoplasty and virginity testing only exist within the context of extremely repressive myths and attitudes about female sexuality, and criminalisation was the only way to convey the message that these attitudes are unacceptable. Women and girls who were undergoing these procedures, which have no medical value, were usually under intense family pressure often exercised through coercive control and violence, and, therefore, could not be considered to be freely consenting to the procedure. There was also little evidence that the availability of hymenoplasty can protect women from violence, and the continued availability of the procedure would contribute to perpetuating inaccurate and harmful beliefs about female virginity. Hymenoplasty and virginity testing were also found to be so inextricably linked that prohibiting virginity testing would be undermined without also banning hymenoplasty.

Moreover, we found that regulatory frameworks would not be able to adequately protect women and girls from these harms and the panel therefore recommended that carrying out hymenoplasty become a criminal offence, along with procuring or arranging for hymenoplasty (including when carried out abroad).

While a prohibition on hymenoplasty will make it clear that this procedure is not acceptable, it is evident that more work will need to be done to protect women from the harms associated with it. We recommended that the government engage with communities that are known to seek these procedures to educate them on the ban and support those at risk, as well as provide guidance and training to those working with these communities. In advance of this legislation coming into force, there may be an increase in demand for these procedures. While IHPN is not aware of any of our members offering hymenoplasty or virginity testing, providers should review their policies on safeguarding to ensure that women and girls at risk of honour-based violence are protected.

Though the prevalence of these procedures may not be high and the issue directly impacts a minority of women, the level of harm caused to those women who are affected is so great that it is well worth the government’s efforts to introduce legislation to ban hymenoplasty. Legislation alone, is of course not going to end the violence women and girls experience. However, set within the wider ‘Tackling violence against women and girls strategy’, the ban on virginity testing and hymenoplasty demonstrates the willingness of the government to take decisive action in the implementation of this strategy.

Even though there was no disagreement on the panel that hymenoplasty causes harm to women, participating in the development of this policy highlighted to me that an issue like this needs to be approached from all angles to decide what is the best course of action to prevent harm. The panel carefully considered many arguments for and against criminal prohibition, and whether there were any other ways to prevent harm other than a ban. These discussions highlighted the complex moral and ethical issues that are implicated in an issue like this, particularly as it involves a practice with a strong cultural component. I look forward to continuing to represent the independent sector in the development of guidance concerning the ban on virginity testing and hymenoplasty.

Dawn Hodgkins, Director of Regulation, IHPN