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

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

Introduction

 

It is common in
the legal commentary to refer to child sterilisation as if it is a gender
neutral issue, [1] but the overwhelming majority
of sterilisations and certainly all the cases heard by relevant Australian
courts and tribunals, involve female children with intellectual disabilities.
There is social problem at the centre of the debate about sterilisation.
Sterilisation is a procedure that is notorious for having been performed
on young women with disabilities for various purposes ranging from eugenics
[2] through menstrual management and personal care,
[3] to the prevention of pregnancy, including pregnancy
[4] as a result of sexual abuse. [5]

Sterilisation of
children [6] in the Australian context is related
primarily to two characteristics - gender and disability.

The High Court of
Australia held in 1992, in a case known as Marion's case,[7]
that court or tribunal authority is required before any child can lawfully
be sterilised, unless the sterilisation occurs as a by-product of surgery
carried out to treat some malfunction or disease. It said authorisation
may only be given if sterilisation is determined to be 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.

The former Disability
Discrimination Commissioner, the late Elizabeth Hastings, subsequently
became concerned that the principles laid down by the High Court were
not being complied with, and commissioned and published "The Sterilisation
of Girls and Young Women in Australia: a legal, medical and social context"

hereafter called the 1997 Report.[8]

It described the
legal framework that applies to decision-making in respect of sterilisation
of children post Marion, and provided commentary on the distinction between
therapeutic and non-therapeutic sterilisation and the key principles of
best interests of the child and procedure of 'last resort'.

It described the
reasons that are commonly given in support of the sterilisation of girls
and young women and the medical procedures by which they are sterilised.
It also described the alternative and less invasive ways by which the
apparent 'problems' might be resolved.

And finally, it also
analysed the available data in relation to the numbers of girls and young
women who are being sterilised, lawfully or otherwise. It found that sterilisations
of girls and young women since Marion's case far exceeded those authorised
by courts and tribunals, and concluded that the law had failed to protect
significant numbers of children from abuse of their fundamental human
right to bodily integrity.

This report summarises
some developments since the 1997 Report, including responses to it most
notably debate about the numbers of sterilisations being performed. It
provides up-to-date information on the number of applications to the Family
Court or relevant State Guardianship Tribunals. [9]
It is written to contribute to further community discussion in this sensitive
area.


1.
Graycar,R. (1994). Sterilisation of young women with disabilities: towards
a regulatory framework Australian Journal of Human Rights (1) 1
pp 380-381.

2.
Secretary, Dept of Community Services and Health v JWB and SMB, 1992 CLR
218. See discussion by Judge Brennan at 275. An acknowledgment to Mr Baldwin
Reichwein RSW, former Assistant Director of Child Welfare, and Associate
Professor Gayle Gilchrist James, University of Calgery, Alberta, who contributed
research materials on the issue of sterilisations and compensation.

3.
Carlson, G., Taylor, M., Wilson, J, & Griffin, J.(1994) "Menstrual
Management and Fertility Managment 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.

4.
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

5.
ibid and see Little, H.(1993). Non-consensual sterilisation of the intellectually
disabled in the Australian context: potential for human rights abuse and
the need for reform, Australian
Yearbook of International Law

p 203, and see Rhoades, H. (1995). Intellectual disability and sterilisation
- an inevitable connection? Australian Journal of Family Law 9,
p234.

6.
This report is about the sterilisation of girls and young women up to
18 years of age. We use the terms "child,' 'girl,' or 'young woman' inter-changeably,
because sterilisation procedures are carried out on minors who are not
teenagers and/or have not commenced menstruation. We are conscious of
the potential criticisms that by so doing we are using language which
trivialises the rights and capacity of young people who are yet to reach
18 to have expressed and considered views about their sexuality, reproduction
rights, health and well being. By "sterilisation" we mean a surgical intervention
that results either directly or indirectly in the termination of an individual's
capacity to reproduce. Typically we refer to "sterilisation procedures",
by which we mean those medical interventions which are known to or are
reasonably likely in all circumstances to cause sterilisation whether
or not that is the purpose for which they are carried out.

7.
Secretary, Dept of Community Services and Health v JWB and SMB, 1992 CLR
218

8.
Brady, SM & Grover, S.(1997). "The Sterilisation of Girls and Young
Women in Australia: a legal, medical and social context,
commissioned
by the Disability Discrimination Commissioner HREOC.

9.
The raw data used in this report is derived from PhD research on special
medical procedures for children by SM. Brady, University of Queensland,
School of Social Work & Social Policy. Special thanks to the Family Court
of Australia, the New South Wales Guardianship Tribunal, the Guardianship
Board of South Australia and the Office of the Public Advocate, South
Australia, for their support and assistance.