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The Sterilisation of Girls and Young Women in Australia: issues and progress
Chapter six - where to from here?
(a) the current situation, in overview
The High Court in Marion in 1992 sought to ensure heightened accountability in decision making in relation to the sterilisation of children. It decided that the law requires that sterilisation of children has judicial or quasi judicial authority in all circumstances other than those in which it occurs as a by product of surgery appropriately carried out to treat some bodily malfunction or disease.
The official data is unreliable, at least for the time being, and the anecdotal data by its very nature can't be quantified, but there is good reason nonetheless to believe that girls continue to be sterilised, and sterilised in numbers which far exceed those that have been lawfully authorised.
There might be a number of reasons why, but there is little reason these days to believe that ignorance of the law among the medical profession is one of them. The issue has been canvassed widely in medical journals for a decade or more, and in the mass media too, most recently at the Commonwealth's initiative in December last year. [1]
The High Court anticipated one of the likely reasons in Marion. The majority in that case made the point 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 in that way." [2]
Legal Aid Guidelines which came into effect in 2000 ensure that children subject to applications for sterilisation are legally represented free of charge, but parents who might wish to bring an application must still satisfy the stringent means test that applies to legal aid generally. [3]
The Family Court has introduced protocols and procedures in a number of States which are designed to divert matters from court until all less invasive non surgical alternatives have been explored and excluded, but protocols are difficult to implement for structural, organisational and professional reasons. The Court has also amended its rules in ways that enable it to pre-empt or at least ameliorate its adversarial process in these matters, but it rarely uses them. [4]
Two states, New South Wales and South Australia, have enacted legislation which gives their guardianship tribunals concurrent jurisdiction. The guardianship tribunals are inquiring in nature and don't require applicants to be legally represented, and the anecdotal evidence, which is borne out by the statistics, is that parents will use that option where it is available to them. [5] Those two States aside, however, there has been no other legislative reform.
It is quite clear, whatever legal forum is available to act as decision maker, that families who may be contemplating sterilising their daughter should have the earliest possible opportunity to trial less invasive alternatives, before any legal process begins.
(b) key areas for reform
A lot of work needs to be done, much of it directed to achieving medium to longer term cultural and attitudinal change. [6] There are a number of practical measures that might be taken, however, which would address specific problem areas. They include the following:
- to require that claims for Medicare funds by doctors in relation to the sterilisation of children should be accompanied by either an order of the appropriate court or tribunal or full clinical details of the need for such a procedure. [7]
- to engage the Commonwealth and State Attorney's General in a renewed debate about the need first identified by the High Court in Marion for legislative reform which achieves heightened accountability in these matters in a way which is neither costly for parents nor adversarial.
Such reform might be achieved in a number of ways, but the most hopeful model, given the precedent in New South Wales and South Australia, [8] is one in which the States give jurisdiction to their respective guardianship tribunals. Those tribunals are specialist bodies which already have jurisdiction in these matters in respect of adults with diminished capacity. They have the great advantage over any Commonwealth forum of having well established links, or the capacity to develop such links, with government and non-government service providers to children with disability and their families. Non-therapeutic sterilisation is euphemistically termed a special medical procedure but it is related to the characteristic 'disability' rather than clinical need and logically decision-making must be better off in a jurisdiction experienced in disability issues and linked to disability services. Family members of adults with intellectual disabilities have this option and it should also be an option for parents of children with intellectual disabilities.
As recommended by the Family Law Council there is a need for specific criteria, and uniform national standards which prescribe the circumstances in which children may, or may not, be sterilised. [9]
- to engage government and non-government service providers to children with disabilities and their families, including Departments of Education and special educators, in consultation about the need to have coordinated policies and procedures in place which enable them to provide effective assistance to families who need assistance in managing their daughter's menstruation or concerns about fertility.
Service providing agencies and in particular their frontline staff should have ready access to concise and accurate information about the law in relation to sterilisation of children, and ready access to a range of practical resources and literature about fertility and menstrual management for girls and women with disability. There is no paucity of good resources available, but there may be a problem accessing them.
It is impossible to over-emphasise the importance of parents having early access to opportunities to explore less invasive alternatives to surgical sterilisation. Special schools have a key role in providing those opportunities, or having effective links with other service providers with whom they can collaborate. It is therefore critical that special school-teachers and their aides have access to the knowledge and skills necessary to provide information and practical assistance to girls with disabilities and their families. [10] They, and other service providers, play a vital role in ensuring families are not encouraged to seek sterilisation rather than pro-active programmes designed to support families in an exploration of non-surgical alternatives.
The protection of the rights and integrity of girls and young women with intellectual disabilities, as envisaged by the High Court in Marion's case, remains dependant upon appropriate law reform and the service landscape for children and their families.
4. 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 and with reference to the use of protocols see the Family Law Council (2000) The best interests of the child? The interaction of Public and Private Law in Australia, Discussion Paper No.2 October, Canberra, and with reference to judges views on intervention see Freckelton, I., Reddy, P & Selby, H. (1999). Australian Judicial Perspectives on Expert Evidence: an empirical study. AIJA, Melbourne.
6. This is a theme consistently identified by respondents in this report however for further discussion see Brady, SM. (2001). The sterilisation of girls and young women with intellectual disabilities in Australia: an audit of family court and guardianship tribunal cases between 1992-1998 in Conference Proceedings Disability with attitude : critical issues 20 years after International Year of the Disabled, International conference 16-17 February 2001, University of Western Sydney. pp 108-122 and Brady, SM. (2001). Sterilization of girls and young women with intellectual disabilities: past and present justifications, Violence against Women 7 (4) April pp 432-461. Special Edition Sage Publications, Inc.
7. See Chapter Five and Commissioner Sidoti's comments.
8. See Chapter Three which identified parents tend to use the tribunal model if it is available to them.
9. See Family Law Council (1994) Sterilisation and Other Medical Procedures on Children : A Report to the Attorney-General, Canberra
10. Special schools play an important role in the lives of families and children with disabilities. Children are at school for significant parts of the day and families are dependent upon the services they offer.