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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

  • 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

"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"

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

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.

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.

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.

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

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

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

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

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

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.

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

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

Marion at p 234

Marion at p 253

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

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

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


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
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.

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.

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

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

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

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.

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

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

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.

refer footnotes 21 and 25