The Sterilisation of Girls and Young Women in Australia
A report by Susan M Brady and Dr Sonia Grover: December 1997
Commissioned by Federal Disability Discrimination Commissioner Elizabeth Hastings
See now 2001 update report
The legal framework regulating sterilisation of children in Australia was set out by the High Court in Marion's Case in 1992. It sought to ensure heightened accountability in decision making in an area where children are at significant risk of grave abuse of their fundamental human right to bodily integrity. It held that:
- court or tribunal authority is required before any child can lawfully be sterilised unless the sterilisation occurs as a by-product of surgery appropriately carried out to treat some malfunction or disease; and
- authorisation may be given only if sterilisation is in the child's best interests after alternative and less invasive procedures have all failed or it is certain that no other procedure or treatment will work.
Courts and tribunals have authorised a total of 17 sterilisations of girls since Marion's Case. Meanwhile, data collated by the Health Insurance Commission shows that at least 1045 girls have been sterilised over this same period, and this figure counts only those sterilisations which qualify for a medicare benefit and for which a claim has been processed. It excludes sterilisations carried out by hospital doctors on public patients in public hospitals. Comparisons with other data sources suggest that the true number is much greater, perhaps by a factor of several times.
Without any doubt most of these girls were sterilised unlawfully. The facts are clear:
- disease of the reproductive tract is a very rare occurrence in girls, and no less rare in girls with intellectual disability. It follows that very few of these girls were sterilised genuinely 'as a by product of surgery appropriately carried out to treat some malfunction or disease.' The sterilisations of the vast majority were unlawful because they were not authorised by a court or tribunal;
- sterilisation in the absence of malfunction or disease may sometimes be the option of genuine last resort, but this too is a rare occurrence. There are almost always less invasive alternatives of both medical and non-medical kinds, and they work with few exceptions. The sterilisations of the vast majority were unlawful because without any doubt alternative and less invasive options had not been exhausted.
The law has failed to protect significant numbers of children from significant abuse of their fundamental human right to bodily integrity. Worse, the community has aided and abetted that abuse by funding it - all the 1045 sterilisations which are identified can be identified only because they were 'services which qualify for medicare benefit,' and the many more, perhaps several times more, are in the main 'services provided by hospital doctors to public patients in public hospitals.'
How can this be?
It is possible that there is widespread ignorance of the law within the medical community, but not likely. Key professional bodies such as the Australian Medical Association, the Royal Australian College of Obstetricians and Gynaecologists, the Australian College of Paediatrics, and others all made submissions to major law reform inquiries including that of the Family Law Council and the Law Reform Commission of Western Australia.
It is possible that the law is insufficiently clear. Both the Family Law Council and the Law Reform Commission of Western Australia have argued that the distinction between therapeutic and non-therapeutic sterilisations is too uncertain a test of which matters require court authorisation. They have both argued also that the best interests test needs to be spelt out to give decision makers guidance in its application. However, ethical professional practice and simple prudence can of themselves ensure the heightened accountability the High Court sought to achieve through these tests.
It is possible also that the law is being deliberately flouted, motivated in particular by the financial burdens on families of the requirement to seek court authorisation. There is anecdotal evidence to this effect. The High Court itself drew attention to this issue in Marion's Case when it urged legislative reform for this reason. It is without doubt a significant disincentive to achieving heightened accountability in decision making about the sterilisation of children.
These matters require urgent attention in the best interests of significant numbers of children whose human rights have been and continue to be abused in fundamental ways. The issue of law reform has been on the agenda of the Standing Committee of Attorneys General since Marion. It requires only the political will to bring it to conclusion.
Sterilisation of Women and Young Girls with an Intellectual Disability: Report to the Senate tabled by the Minister for Family and Community Services and Minister Assisting the Prime Minister for the Status of Women (6 December 2000)