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• 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 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.

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.