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Q&A: President-Elect Rebecca Sandford
SARAH MCINNES, BACHELOR OF LAWS STUDENT, UNISA
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The practice of forced sterilisation of women and girls with disabilities garners attention and discussion; particularly surrounding the legality of such an exercise. Despite a plethora of sanctions from the disability community, their allies and international bodies to condemn and criminalise forced sterilisation, this practice is still very much legal in Australia.1 While it is widely recognised that the practice of forced sterilisation is identified to be a form of violence and violates several human rights outlined in a multitude of United Nations Treaties and Conventions,2 there are still some existing justifications in favour of the procedure.3 These rationales are protected, and in many cases reinforced by the lack of legislative action by the Australian Government.4 This essay examines Australia’s compliance with their international obligations surrounding this issue, Australia’s current legislative framework and the reasoning’s being used to justify this form of violence.
OVERVIEW
The definition of ‘sterilisation’ is outlined by Women With Disabilities Australia (WWDA) as ‘the performance of a medical procedure which permanently removes an individual’s ability to reproduce, and/or the administration of medication to suppress menstruation.’5 WWDA also defined ‘forced/involuntary sterilisation’ as ‘the performance of a procedure which results in sterilisation in the absence of the free and informed consent of the individual who undergoes the procedure.’6 This delineation includes situations where sterilisation has been authorised by a third party such as a parent, legal guardian, court, tribunal or judge.7 The Convention on the Rights of Persons with Disabilities 2008 (CRPD) defines persons with disabilities as those who have ‘long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’8 Procedures with the result of sterilisation can vary from permanent or irreversible procedures like a hysterectomy, tubal litigation and endometrial ablation. They also include non-permanent contraceptive measures such as oral contraceptives, diaphragms, intrauterine devices and long active reversible contraceptives such as injections or implants.9 There may be occurrences in which disabled men and boys are victims of sterilisation, however, all sources state that this is clearly a gendered issue simply because sterilisation disproportionately affects women and girls.10
As of 2005, United Nations treaty monitoring bodies have regularly and officially urged the Australian Government to authorise national legislation prohibiting, except in serious circumstances, the use of sterilisation on girls regardless of whether they have a disability, and of adult women with disabilities in the absence of free and informed consent.11 By allowing this complete breach of international law to continue, consecutive Australian Governments have violated international law.12 The procedure of forced sterilisation breaches every international human rights treaty that Australia is a party to.13 Legally permitting forced sterilisation directly associates the Australian Government to the commission of torture against these vulnerable individuals.14 The particular international treaties breached include; the CRPD, with special attention on articles 12 and 16 respectively, the Convention on the Rights of the Child (“CRC”), 15 the Covenant on the Elimination of All Forms of Discrimination Against Women (CEDAW), 16 the International Covenant on Civil and Political Rights (ICCP)17 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).18 Australia became one of the first signatories to the CRPD when ratified in July 2008 and the Optional Protocol in 2009.19 Its ultimate objective is to ‘promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.’20 Notably, after entering into the treaty, the Australian Government consolidated their position that the CRPD did include the sanctioning for alternative decision making and compulsory medical treatment.21 It should also be noted that while the CRPD (the committee) has the ability to make recommendations which the Australian Government should take certain actions, the CRPD is not binding in nature, as the power lays with the Australian Government to enact legislation to uphold their international obligations.22
ARTICLE 12 EQUAL RECOGNITION BEFORE THE LAW
According to Article 12, ‘persons with disabilities have the right to recognition everywhere as persons before the law’,23 this includes recognising that persons with disabilities ‘enjoy legal capacity on an equal basis with others in all aspects of life.’24 States party to the convention are required to take ‘appropriate measures to provide access for persons with disabilities to the support they may require to exercise their legal capacity,’ while ensuring that effective safeguards are implemented in all measures relating to the exercise of legal capacity to prevent abuse of human rights.25 People With Disabilities Australia dispute that the application of article 12 requires ‘establishing supported decision-making alternatives to substituted decision-making regimes [and] effective safeguards to be introduced in relation to supported decision-making arrangements to prevent abuse in accordance with international human rights law.’26 Therefore, by allowing substituted decision-making regimes to continue, specifically those outlined in the Guardianship and Administration Act 1993 (SA)27 or at common law relating to the sterilisation of girls with disabilities, Australia is in breach of their international obligations as stated in Article 12 of the CRPD.28
ARTICLE 16 FREEDOM FROM EXPLOITATION, VIOLENCE AND ABUSE
Article 16 requires States ‘take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities from all forms of exploitation, violence and abuse, including their gender-based aspects.’29 It obliges States to provide information, education, assistance and support for persons with disabilities and their families on how to avoid, recognise and report instances of exploitation, violence and abuse.30 States are ordered to enact effective policies and legislation, inclusive of those focused on the protection of women and children, to ensure the occurrences of exploitation, violence and abuse against persons with disabilities are ‘identified, investigated and, where appropriate, prosecuted.’31 As forced sterilisation is identified as a form of violence, and Article 16 requires States to protect individuals from such practices which constitute violence, it is evident that under the CRPD, Australia is again in breach of their international obligations.32
AUSTRALIA’S CURRENT LEGISLATIVE FRAMEWORK
In order for Australia’s international obligations to take effect, they must be brought into domestic law; through federal, state and territory legislation.33 As there is no federal legislation governing the issue of forced sterilisation of women and girls with disabilities, there are many discrepancies between states and territories regarding the court processes and legislation.34
Marion’s Case 1992
Although there is currently no federal legislation to govern the issue of forced sterilisation, the High Court decision now referred to as Marion’s Case is the leading precedent utilised on the subject.35 In 1992 an application was made to the High Court on appeal from the Family Court by the parents of a teenage girl with an intellectual disability.36 The application was for a ‘non-therapeutic’ surgical sterilisation to control the girl’s menstruation and avoid pregnancy.37 In their findings, the High Court concluded that essential questions of human rights including the right to reproduce should be decided by courts instead of parents, carers or medical practitioners.38 Instead, parental power is limited to circumstances ‘where sterilisation is an incidental result of surgery performed to cure a disease or
correct some malfunction.’39 At the time, this decision was seen as a significant step in the right direction regarding the rights of persons with disabilities, however, future judicial decisions and social practices have consistently failed to put into practice the findings of Marion’s Case. 40 Despite the seemingly noteworthy progress, these failures can be seen during the proceedings of Marion’s own case. Marion was quickly deemed ‘legally incapable’ and nobody attempted to understand what her wishes were. Unfortunately, this is a common trend amongst cases of sterilisation, and there has been very little deliberation in the judgements of such decisions in comparison to decisions in cases that relate to the sterilisation of non-disabled children.41
In all Australian states and territories, they are required to obtain authorisation of either the Family Court of Australia or a state or territory guardianship tribunal, governed by the relevant act, before a child or adult with a disability can be involuntarily sterilised.42 The Australian Guardianship and Administrative Council published a Protocol for Special Medical Procedures (Sterilisation) with the aim of promoting consistency between the Australian jurisdictions when exercising power over the issue in 2009.43 The protocol outlines in Phase 2 that tribunals should adopt a two-stage inquiry process.44 First, the tribunal must consider whether an individual has the mental capacity to consent to sterilisation, however, even though the protocol requires tribunals to consider capacity as a ‘threshold question’ it does not forbid tribunals from hearing a case where the individual does have capacity.45 Secondly, before the procedure is authorised, the tribunal must consider whether sterilisation is necessary, including whether all other avenues have been explored and rejected.46
However, in their 2013 submission to the Senate Inquiry on ‘forced sterilisation’, the Australian Human Rights Commission reported their growing concerns that the current legal and regulatory frameworks built on the notion of court or tribunal authority had failed to protect women and girls with disabilities from forced or coerced sterilisation.47 They articulate that the system of court or tribunal authorisation has not prevented women and girls with disabilities from being involuntarily sterilised, either with or without court appointed authorisation.48 This has lead WWDA to ponder whether the ‘best interests’ of the child is judged according to human rights principles or whether it is the ‘best compromise between the competing interests of parents, carers, service providers and policy makers’.49
South Australia
The South Australian Government has minimal accessible information on the issue of forced sterilisation in comparison to other Australian states and territories. The Guardianship and Administration Act 1993 is the governing legislation, and articulates the Tribunal will not approve the procedure without certain criteria being met.50 This Act’s purpose is ‘to provide for the guardianship of persons unable to look after their own health, safety or welfare or to manage their own affairs and for the management of the estates of such persons; and for other purposes.’51 Part 5 outlines ‘consent to prescribe medical treatment of mentally incapacitated persons’, specifically section 61 which articulates the laws surrounding substituted decision making regimes in South Australia.52 The use of substituted decision-making regimes is inconsistent with Article 12 of the CRPD and therefore puts the South Australian Government in breach of international obligations.
RATIONALES SUPPORTING FORCED STERILISATION
WWDA categorises the leading reasons for the sterilisation of women and girls with disabilities into four extensive groupings: the eugenics argument, the good of the state, community or family argument, the incapacity for parenthood argument and, the prevention of sexual abuse argument.53 Each of these reasonings are deeply engrained in the medical model of disability.54 Currently, the medical model considers disability as a ‘tragic defect or disorder and causes dependence on others’,55 the focus is placed on ‘diagnosis and treatment of what are seen as cognitive and adaptive defects, measured against norms of intelligence and independent functioning’.56 Eugenics Argument
This argument is centred around the misplaced fear that women with disabilities will produce children with undesirable genetic ‘defects’.57 Currently, this is demonstrated under the guise of ‘best interests’, distancing itself from any connection to the Nazi era of genetic cleansing.58 Historically, this justification was utilised with the aim to stop ‘nonproductive members of society from reproducing for the “benefit” of the rest of society’.59 Whilst this rationale has been eliminated from the legislation of most countries, fragments may still be seen in the attitudes of some areas of the national community.60 This justification can be seen in the recent case of BH v CCH [2004]61 where the Family Court authorised the sterilisation of a 12-year-old girl with an intellectual disability and Tuberous Sclerosis (“TS”). Whilst there was only a 50% chance that her child would be born with TS, the court still ruled for sterilising her, even though one in two people born with TS lead normal lives.62
Good of the State, Community or Family Argument
This rationale concentrates on the ‘burden’ women and girls with disabilities and any potentially disabled children places on ‘resources and services provided by the state and community’.63 This includes the burden of ‘menstruation and contraception management’ set on families and carers due to ‘conditions’ such as challenging or unmanageable behaviour and hygiene issues.64 This reasoning can be seen in several court proceedings where the sterilisation of a young girl has been authorised on the basis of menstruation management, or, shockingly, even before the individual has begun menstruating.65 This is shown in the case of Re Angela [2010]66 where the Family Court authorised the hysterectomy of an 11-year-old with Rett Syndrome to prevent menstruation.67 It is argued sterilisation is often less costly, faster and easier than providing programmes and support services to educate girls and women and with disabilities to understand information about their bodies, sex, safety, rights and relationships.68 When parents and carers are given the necessary support and resources, this justification of menstrual management loses all standing.69
Incapacity for Parenthood Argument
This justification focuses on the contemporary misconception that women with disabilities, particularly intellectual disabilities, are unable to be good parents.70 This harmful philosophy stresses to prevent the pregnancy of women with disabilities, which can be seen in an account given by an anonymous South Australian woman submitted to the Senate Inquiry of 2013.71 She details the extremely traumatic experience of being forced to terminate her pregnancy at 22 weeks due to the pressure she received from doctors and psychologists at the hospital she was held at until she made the ‘right decision’.72 These women are often seen as ‘perpetually childlike, asexual or over-sexed and therefore would be inadequate parents’.73 In her submission to the Senate Inquiry, Australian comedian, journalist and disability rights activist Stella Young details her own experiences with this misconception after she was ‘laughed at when telling a doctor that she was sexually active.’74 In Australia, parents with a disability are up to ten times more likely to have a child in their care removed compared to a parent without a disability, carried out on the basis of the parents
Endnotes 1 Elliot, (2017) 1. 2 Australian Human Rights Commission (2013).
Submission No. 5 to Senate Community Affairs
Reference Committee; Sydney: Australian Human
Rights Commission 3 [6]. 3 Elliot, (2017) 8. 4 Ibid. 5 Frohmader, (2013) 22 [18]. 6 Ibid. 7 Elliot, (2017) 2. 8 Convention on the Rights of Persons with
Disabilities. (2008) art 1. 9 Elliot, (2017) 2. 10 Frohmader, (2013) 19 [21]. 11 Ibid 55 [107]. 12 Ibid 55 [108]. 13 Ibid 8 [6]. 14 Ibid. 15 Convention on the Rights of the Child. (1990) 16 Convention on the Elimination of all Forms of
Discrimination Against Women. (1981). 17 International Convention on Civil and Political
Rights. (1976). 18 International Covenant on Economic, Social and
Cultural Rights. (1976). 19 Australian Law Reform Commission (2013) [19]. 20 Frohmader, (2013) 56 [110]. 21 Elliot, (2017) 4. 22 Elliot, (2017) 4. 23 Convention on the Rights of Persons with
Disabilities. (2008) art 12(1). 24 Ibid art 12(2). disability as prime facie evidence rather than an incapacity to care for the child.75
Prevention of Sexual Abuse Argument
This rationale is based on the assumption that women and girls with disabilities are more susceptible to sexual abuse, and as a result should be sterilised to prevent both the abuse and any potential unwanted outcomes.76 An example of this is the case of Re Katie (1995)77, where the girl's ‘attractive looks’ formed part of the Court’s reasoning’s for authorising her sterilisation at 16-yearsold as they made her ‘more of a target of sexual predators’.78 The contradictory character of this reasoning is immediately apparent; it is not utilised to prevent sexual abuse from occurring, but instead averting any possible consequences from the abuse, namely, pregnancy.79 Research conducted has exposed that rather than protecting vulnerable girls from sexual abuse, sterilisation actually increases the risk as there is no possible chance of pregnancy, especially for women with intellectual disabilities residing in psychiatric or other institutions.80 Under this rationale, sterilisation is utilised as a ‘Band-Aid’ solution which disproportionately puts the
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48 49 50 51 Ibid art 12(3-4). People with Disabilities Australia. (2013). Guardianship and Administration Act 1993 (SA). Elliot, (2017) 5. Convention on the Rights of Persons with Disabilities. (2008) art 16. Ibid art 16(2). Ibid art 16(5). Elliot, (2017) 5. Ibid. Ibid. Ibid. Frohmader, (2013) 21 [26]. Ibid. Ibid. Secretary, Department of Health and Community Services v JMB and SMB (Marion’s Case) (1992) [253]. Ibid. Elliot, (2017) 6. Australian Human Rights Commission. (2013) 10 [36]. Ibid. Protocol for Special Medical Procedures (Sterilisation) (Cth) (2009). Elliot, (2017) 7. Ibid. Australian Human Rights Commission. (2013) 10 [37]. Ibid. Ibid. Guardianship and Administration Act 1993 (SA) s 61. Guardianship and Administration Act 1993 (SA). responsibility on vulnerable young girls instead of taking appropriate action to fight sexual assault at its roots.81
CONCLUSION
Forced sterilisation is a form of torture and breaches every human rights treaty to which Australia is a party to.82 Despite significant attention and discussion surrounding this issue, with their inaction, successive Australian Governments have remained apathetic and indifferent to this clear violation of the human rights of vulnerable women and girls. Research shows that the current ‘rationales’ used to defend this practice are misleading and unnecessary. Allowing violence against women and children with disabilities is unacceptable and cannot be allowed to continue here in Australia.83 It is evident that substantial legislative reform beginning with a national legislative scheme criminalising this behaviour is in order, to not only ensure Australia’s compliance with all international law, but also to guarantee the protection of the most vulnerable individuals within our community. B
52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 Guardianship and Administration Act 1993 (SA) s 61. Elliot, (2017) 8. Ibid. Parker, Malcolm. (2012) 512–27. Ibid. Elliot, (2017) 8. Ibid. Spicer, Cathy, (1999). Frohmader, (2013) 25 [24]. BH v CCH [2004] Elliot, (2017) 8. Frohmader, (2013) 38 [57]. Elliot, (2017) 8. Ibid. Re Angela [2010]. Elliot, (2017) 8. Ibid 9. Ibid. Ibid. Name withheld. Name withheld. Elliot, (2017) 9. Young, Stella, (2013) Elliot, (2017) 9. Frohmader, (2013) 47 [82]. Re Katie (1995). Frohmader, (2013) 47 [83]. Elliot, (2017) 10. Ibid. Ibid. Frohmader, (2013) 96. Elliot, (2017) 16.
