EL INTERÉS SUPERIOR DEL MENOR (NNA) EN EL ÁMBITO DE LA SALUD. EL CONSENTIMIENTO INFORMADO DE NIÑOS, NIÑAS Y ADOLESCENTES. ESPECIAL REFERENCIA A MENORES DE EDAD TRANSEXUALES E INTERSEXUALES EN LA NUEVA LEGALIDAD ESPAÑOLA

This paper focuses on the best interests of the child within the healthcare context, particularly in situations involving children and adolescents undergoing medical treatments or surgical interventions with serious or irreversible physical, mental, or psychological consequences. It examines the different scenarios in which the protection of the child’s best interests intersects with the duties of representation by parents or legal guardians. We analyze the scope and functioning of informed consent required in these cases, as regulated by Articles 8 and 9 of Law 41/2002 on Patient Autonomy, building on the recognition of the fundamental right of children and adolescents to be heard and to participate in healthcare decisions according to their maturity level, in accordance with Article 9 of Organic Law 1/1996 on the Legal Protection of Minors. Special attention is given to trans and intersex minors, whose treatments often involve irreversible medical procedures or those with a significant impact on their identity. Law 4/2023 of February 28, on the real and effective equality of trans people and the guarantee of LGTBI rights, allows for the correction of sex registration in civil registries with or without physical changes, extending this right to minors. This new Spanish regulation promotes respect for gender identity and restricts practices considered non-consensual or harmful, establishing protocols to ensure their right to self-determination and the protection of their overall health. We also examine the stance of case law (from the Supreme Court, Constitutional Court, and the European Court of Human Rights) regarding conflicts of interest in medical interventions where potential clashes arise, and how priority decisions are resolved when minors are involved.