Sterilisation: Chapter one

The Sterilisation of Girls and Young Women in Australia: issues and progress

Chapter one - the legal framework

(a) the High Court's decision in 'Marion'

In 1992 the High Court of Australia decided in Marion that the scope of parental authority did not extend to special medical procedures like sterilisation. It noted that:

  • court authorisation is required because procedures like sterilisation require "invasive, irreversible and major surgery" (Marion at 250);
  • there is a significant risk of making a "wrong decision" about both the child's present or future capacity to consent. This is true for all children, however, the potential for wrong assessment about capacity is "affected by commonly held misconceptions about the abilities of those with intellectual disabilities" (Marion at 250);
  • doctors play a central role in what is not just a medical decision (Marion, at 232), but absolute faith in the integrity of all medical practitioners is not warranted (Marion at 251) it is possible that parents, other family members, and carers may have conflicting interests which would influence their decision, (Marion at 306);
  • the consequences of making a wrong decision are particularly grave taking into account the "fundamental right to personal inviolability existing in the law" (Marion, at 253), the "invasion of the right to personal integrity" represented by sterilisation (Marion, at 266), and the resulting inability to have children in circumstances where "the decision to sterilise . is not merely a medical issue" (Marion, at 250-252);
  • the requirement of court authorisation "ensures a hearing from those experienced in different ways in the care of those with intellectual disability and from those with experience of the long term social and psychological effects of sterilisation." (Marion, at 259).

The High Court proscribed guiding principles, setting the benchmark for future directions in decision-making for children. [1] It said that:

  • the issue for the court in considering whether to consent to a sterilisation procedure is whether in all the circumstances of the particular child the procedure is in the child's best interests (Marion at 259);
  • sterilisation procedures should never be authorised unless "some compelling justification is identified and demonstrated" (Marion, at 268); and
  • to come to the view that a sterilisation procedure is in a child's best interests the court has to be satisfied that sterilisation is a step of "last resort", or in other words that "alternative and less invasive procedures have all failed or it is certain that no other procedure or treatment will work" (Marion, at 259-260).

Having decided that a sterilisation procedure should be a step of 'last resort,' the High Court then acknowledged that:

  • taking the child's best interests as paramount necessarily means excluding the interests of others except to the extent that they have a bearing on the best interests of the child (Marion, at 270-272);
  • caring for a child with an intellectual disability "adds a significant burden to the ordinarily demanding task of caring for children" and that subject to the child's best interests, "the interests of other family members, particularly primary care-givers, are relevant to a court's decision whether to authorise sterilisation. However, court involvement ensures, in the case of conflict, that the child's interests prevail" (Marion at 306);
  • "in the circumstances with which we are concerned, the best interests of the child will ordinarily coincide with the wishes of the parents" (Marion at 260), but "on occasion, the courts may refuse to authorise a sterilisation desired by the parents" (Marion at 315).

The decision in Marion reflected a shift in the law in attitudes towards children with disabilities by adopting a rights-based focus consistent with international conventions on human rights, and is an Australian case study of the interplay between law, social theory and disability. [2]

It was seen as a major advance for the human rights of people with disability. The High Court explored policy issues inherent in past discriminatory approaches to people with disabilities, and was especially concerned for girls and women given the social and political history during the infamous eugenics period. [3] It acknowledged that sterilisation was not about medical issues per se but rather gender issues [4] and disability discrimination. [5]

From a disability perspective the most significant aspect of Marion is the articulation that children with disabilities have a right to bodily integrity. The right to bodily integrity is a fundamental principle of common law and by proclaiming that girls and young women with disabilities are entitled to personal inviolability the law treats them as having equal value as other children, and in this way affirms the inclusion of people with disabilities as citizens in the life of the community.

More broadly, from a social policy perspective, Marion's case acknowledged the traditional reluctance of courts to interfere with family privacy and autonomy [6] but noted the need to balance respect for family interests [7] with the protection of the child's right to bodily integrity. It acknowledged that children and parents co-exist in a social context and that their rights may be both interdependent and conflicting. It highlights the public interest in scrutinising differential and ethically contentious medical procedures for children [8] and clearly articulated the need for heightened accountability in this type of decision making.

While it acknowledged human rights and broader socio-political issues, the High Court appears at the same time to have adopted a 'child welfare' approach by using the "best interests of the child" as the paramount principle for decision making. Socio-legal commentary is divided on this interpretation and remains undecided about what the High Court meant. Some commentators see the decision as endorsing an approach to decision making in these matters based on fundamental human rights, whereas others see it as endorsing a paternalistic child welfare approach. The decision can be read either way, and is. Both the Joint Standing Committee on Treaties [9] and the Australian Law Reform Commission [10] have recognised the potential for discrepancies in outcomes for children.

Judge Brennan of the High Court noted that the application and interpretation of the best interest principle in sterilisation matters raises questions of policy which:

"involve issues that are as much social or moral as they are legal and the answer to them is inevitably affected by personal perceptions of the current social conditions, standards, and demands" [11]

The debate about the proper approach to the sterilisation of children with intellectual disabilities raises issues of how to balance competing social and moral interests in these sensitive cases, how to address the issue of differential or discriminatory treatment on the basis of the characteristics disability and gender, and how to ensure that the child's rights and interests are protected whilst respecting the rights of others.

Marion's case also raised issues about the potentially broader scope of federal political authority to legislate for the protection of children. In coming to its decision the High Court recognised it brought with it a need for law reform:

"[We] acknowledge that it is too costly for most parents to fund court proceedings, that delay is likely to cause painful inconvenience and that the strictly adversarial process of the court is very often unsuitable for arriving at this kind of decision. These are clear indications of the need for legislative reform, since a more appropriate process for decision making can only be introduced that way." [12]

There has been debate subsequently about the appropriate process, and whether the decision to sterilise should be governed by clear and legislated criteria or be discretionary, but it has not resulted in the sort of reform the High Court envisaged. [13] The Family Court has rejected the need for legislation about when a sterilisation can be authorised and prefers an 'individualised' case-by-case approach. [14]

(b) the decision-makers

The High Court in Marion decided that the scope of parental authority does not extend to special medical procedures like sterilisation, and that only a court has authority. In practice, that court is the Family Court of Australia exercising its welfare jurisdiction under the Family Law Act.

Two States, however, New South Wales and South Australia, enacted legislation prior to Marion [15] prohibiting sterilisation of children (emergencies aside) without the approval of their respective Guardianship Tribunals in accordance with specific legislative criteria. Guardianship Tribunals in all Australian States deal primarily with adults with impaired decision making abilities, but in NSW and South Australia, also exercise concurrent jurisdiction alongside the Family Court in relation to the sterilisation of children. [16]

The Family Court and State Guardianship Tribunals have different traditions and processes.

The Family Court is a federal court and is constitutionally protected. It is essentially adversarial although it has features that are inquisitorial in approach. It prefers parties to proceedings to have legal representation, which is costly. Judges in the Family Court are given life long appointments. The application for sterilisation is heard by a single judge. The decision-maker, the judge, decides whether to authorise the sterilisation on the basis of arguments put by the applicant and other parties to the application. [17] Appeal of a decision is made to the Full Bench of the Family Court.

The Guardianship Tribunals are characterised as 'inquiring' in approach. They take a more active role in shaping how a matter develops, what information needs to be collected, and how it is to be collected. They do not require legal representation and charge no fees. Appeals of tribunal decisions are to the Supreme Court in NSW, and the Administrative Appeals Tribunal in South Australia. Alternatively because it exercises concurrent jurisdiction, aggrieved applicants may take the matter to the Family Court for 're-hearing' and the Family Court's decision takes precedence.

The tribunals are not constitutionally protected like the Family Court. They comprise of people from multi-disciplinary backgrounds with experience in disability issues. [18] Multi-disciplinary evaluation has been identified as "one of the most controversial yet one of the most important protections that can be extended" [19] to marginalised groups like people with disabilities. Tribunal members are mostly part-time and appointed by the State government for fixed terms, usually three years.

(c) disability legislation &medical treatment decisions

There was considerable legislative activity in the disability field before Marion's case with the implementation of anti-discrimination legislation, guardianship legislation and legislation in relation to service funding. Disability law by its nature sets up a framework for the consideration of 'social facts' like the recognition of past discriminatory and differential responses to people with disabilities. The guiding principles for decision making espoused in Australian disability law and in guardianship legislation (which is part of it) have an international character, and are modelled on United Nations Charters and Conventions.

The guardianship 'model' in Australia operates within a legal tradition based on common law protection of vulnerable persons but incorporates modern notions of self-development and inclusion in the life of the community. The model replaces the traditional paternalistic approaches of courts (ie; the ancient parens patriae role). The model presents as having multiple objectives that appear philosophically incompatible the most obvious being a policy tension between promoting rights and paternalistic protection. [20]

Disability legislation relating to decisions about health and life-style matters adopted a rights based focus and a minimalist role for intervention in the lives of people with disability. Intervention must be the least restrictive alternative possible in all the circumstances and be the last resort confining interference in the lives of people with disability to cases of demonstrated and immediate need. Whether issues involve personal autonomy or bodily integrity, the guiding principles in disability legislation act as 'gate keeping devices' by limiting possibilities for discriminatory and differential interventions on the basis of the characteristic 'disability.'

Historically guardianship and family autonomy have been closely linked and the use of the word 'guardian' is most commonly associated with a person who has legal authority for a child. Guardianship thus has a parent-child signification which could arguably shape expectations about the type of decisions tribunals should make. Evaluation research indicates that the Guardianship Tribunals engage in verbal 'affirmation of the family as a caring institution' during the hearing process making exhortations for family relationships and bonds to be maintained even though in many cases the tribunal decides against the expressed wishes of the parents or family members. [21] In this way both the Family Court and the Guardianship Tribunal models acknowledge the importance of the family, their expressed wishes, and the maintenance of existing relationships.

Legal researchers and commentators espousing the merits of guardianship tribunal approaches place emphasis on their links with local communities and service delivery systems. [22] Linkages with services are viewed as promoting a practical response in developing supports for the child and family [23] and alternatives to surgical sterilisation. [24] The model aims to deliver socially integrative solutions to complex social problems by recognising the need for links with service delivery systems. Linkages with local service delivery systems is a critical factor in the ability of families to address issues of concern that may arise regarding fertility and menstrual management for their daughters. [25] A decision-making forum that has linkages or has the capacity to develop them at a local service level is a practical response to meeting the needs of families who may wish to pursue an application for sterilisation. Evaluation research has shown that this approach works well for adults with decision making disabilities. [26]

1. See Joint Standing Committee on Treaties.(1998). United Nations Convention on the Rights of the Child : Executive Summary: United Nations Convention on the Rights of the Child (17th report) (1998) Parliament of the Commonwealth of Australia Canberra. p 7.

2. Jones,M. & Marks, LAB. (2000). Valuing People through Law - whatever happened to Marion? In (Eds.) M, Jones, and LAB, Marks, Law in Context Special Issue: Explorations on Law and Disability in Australia, Sydney: The Federation Press p153.

3. Goldhar, J (1991). The Sterilisation of Women with an Intellectual Disability, University of Tasmania Law Review 10 pp 157-195.

4. Graycar, R.(1995). The Gender of Judgements - an introduction, In (Ed.) M,Thorton Public and Private - feminist legal debates Melbourne : OUP pp 262-305

5. Fulcher,G.(1995).Disability : a social construction In (Eds.) Lupton,G & Najam.J. Sociology of Health and Illness - Australian Readings : OUP pp 47-61

6. Carmichael & Sarre, 1994; Legal issues: the welfare of and responsibility for children under the law in Australia. In (Ed.) F, Briggs Children and families: Australian perspectives., St Leonards NSW : Allen and Unwin pp 102-125

7. Petersen, K.(1992). The Family v the Family Court :sterilisation issues Australian Journal of Public Health 16, (2) pp196-201

8. Jones, M & Marks, LAB.(1997).Female and Disabled: A Human Rights Perspective on Law and Medicine In (Ed.) K, Petersen, Intersections: Women on Law Medicine and Technology Dartmouth: Ashgate.

9. Joint Standing Committee on Treaties (1998). United Nations Convention on the Rights of the Child : Executive Summary (17th Report), Parliament of Australia. Canberra.

10. Australian Law Reform Commission (1997). Review of the adversarial system of litigation: rethinking family law proceedings. (ALRC:IP 22) Sydney.

11. Marion at p 234

12. Marion at p 253

13. See Family Law Council (1993)."Sterilisation and Other Medical Procedures on Children" : A Discussion Paper and Family Law Council (1994) Sterilisation and Other Medical Procedures on Children : A Report to the Attorney-General, Canberra

14. ibid and see P v.P (no 2) (1994-1995), 19 Fam LR 1

15. See Brady, SM & Grover, S.(1997). "The Sterilisation of Girls and Young Women in Australia: a legal, medical and social context, a report commissioned by the Disability Discrimination Commissioner Human Rights and Equal Opportunity Commission, December .Sydney. See discussion at pp 8-10

16. ibid

17. For a discussion of the issues relating to adversarial court based systems and children's matters see generally, ALRC. (1997).Review of the adversarial system of litigation: rethinking the federal litigation system (ALRC IP 20), Sydney, and ALRC. (1997). Review of the adversarial system of litigation: rethinking family law proceedings (ALRC IP 22) Sydney, and ALRC.(1999). Review of the federal civil litigation system (ALRC DP 62) Sydney.

18. It is a requirement that applications for sterilisation are heard by a minimum of three people at least one being a woman. Each panel comprises a chair person who is a lawyer versed in human rights law, a professional member, usually a doctor, and a 'community' member with a social science background or direct disability experience as person with disability or as an advocate or carer. Some board members have both a professional background and personal experience.

19. Galt, B. (1986). A Critique and Revision of the Utah Guardianship Statute for Incapacitated Persons Utah Law Review 629-663 at p645

20. See for discussion of these issues Carney, T.(1992). Civil and Social guardianship for intellectually handicapped people Monash Law Review 8 (3) pp 199-232

21. See Carney, T & Tait, D (1991). Balanced accountability: an evaluation of the Victorian Guardianship and Administration Board , Melbourne, OPA ; and see Carney, T. and Tait, D. (1997). The Adult Guardianship Experiment : tribunals and popular justice, Sydney: The Federation Press.

22. See Carney, T.(2000). "Protection, Populism and Citzenship" Law in Context : Special Issue 17 (2) in Jones,M & Basser Marks, LA (Eds) Explorations on Law and Disability in Australia, The Federation Press, Sydney and Carney,T and Tait, D. (1997). The Adult Guardianship Experiment : Tribunals and popular justice, Sydney: The Federation Press. The guardianship 'culture' is different to that of the court-based model. Professionals providing services to people with disabilities are bound by the objectives of disability legislation and services policy, including objectives in regard to community participation and inclusion, and services must promote a positive image of persons with disabilities. Refer footnotes 21-25.

23. See Brady, SM. (1996). Invasive and Irreversible - The Sterilisation of Children with Disabilities Alternative Law Journal 21 (4) pp 160-165

24. See Grover, S. (1997). Menstrual and contraceptive management for women with intellectual disabilities Royal Australian College of Obstetricians and Gynaecologists Bulletin 11 (2) pp 12-14

25. See Carlson, G., Taylor, M., Wilson, J, & Griffin, J.(1994) "Menstrual Management and Fertility Management for Women who have Intellectual Disability and High Support Needs : An Analysis of Australian Policy"; Project funded through a Research and Development Grant from the Commonwealth Department of Health, Housing and Community Services.

26. refer footnotes 21 and 25