STERILISATION OF GIRLS WITH DISABILITY
The State Responsibility to
Protect Human Rights
CASHELLE DUNN
University of Melbourne
Involuntary, non-therapeutic sterilisation has
existed in Australia since the 1800s as a form of
eugenics. It has continued to target girls and
women with disability to control fertility under
the guise of ‘health’ and ‘best interests’. Unlike
therapeutic sterilisation non-therapeutic
sterilisation of a female is a planned procedure
with the intent of permanently removing
reproductive capabilities. The procedure of
non-therapeutic sterilisation on children has
been denounced by the United Nations as a
violation of numerous human rights treaties
to which Australia is party. Unfortunately,
Australia legally continues this harmful
practice. The Australian Government has
affirmed that involuntary, non-therapeutic
sterilisation has health benefits for some
girls, particularly in regards to menstruation,
mood and behaviour management, and
emotional relief. The government considers
the current legislation to be living up to
human rights obligations. However, despite
the ‘safeguards’ in place, girls with intellectual
disability continue to experience violations to
their bodily integrity. In this paper, I will argue
that Australian law should abide by its human
rights obligations and protect girls with
disability from sterilisation in all cases that are
non-therapeutic.
The wellbeing of girls should be the primary
consideration when considering nontherapeutic sterilisation. The transition from
child to womanhood is an important milestone
in a girl’s life, and denying significant portions
of this development can be both physically
and mentally devastating. The female body
should not be non-consensually interfered
with, particularly whilst still adjusting to
menstrual cycles and adolescent mood
swings. Eliminating menstruation may provide
some relief to carers, but is unlikely to change
moods or behaviour - and the side effects could
be harmful. Despite governmental opinion,
Australia is recognised as failing to fulfil its
human rights obligations and is discriminating
against girls with disability. Not only is this
affecting the girls, but the lack of support
for parents pushes them to feel they must
trade-off their children’s rights. International
governments have recognised the danger of
continuing the practice, and have enforced
legal prohibition. Certain governments have
even begun providing compensation for
past acts of eugenic sterilisation against girls
with disability. Australia continues this legal
and damaging act of discrimination, despite
the progress made internationally toward
protecting children from this harmful practice.
2
1.
Background Information
1.1
Defining Terms
(a)
Sterilisation
Sterilisation is a surgical operation or any
other process that induces the permanent
loss of reproductive capacity.1 For women, the
most common and effective procedures are
the hysterectomy, bilateral oophorectomy,
tubal ligation and endometrial ablation.
The most common procedure for girls with
disability is the hysterectomy - removing
the uterus and ceasing menstruation,
yet continuing ovulation. Both bilateral
oophorectomy and tubal ligation may be
used in conjunction with a hysterectomy. A
bilateral oophorectomy removes both ovaries.
For a young woman with functioning ovaries
this is a particularly serious operation, as it
will cause a sudden termination of hormone
production and commence menopause. She
will need to undertake long-term hormone
replacement therapy.2 Tubal ligation - blocking
the female egg from proceeding down the
fallopian tube - is less common as ovulation
and menstruation will continue. A total
hysterectomy may also be utilised, removing
the uterus, ovaries, fallopian tube, cervix and
upper vagina.3
(b)
Therapeutic and non-therapeutic
sterilisation
There are two primary reasons a woman will
undergo a sterilisation procedure: therapeutic
and non-therapeutic. Australian law has yet to
provide a clear distinction, given the uncertain
boundary between the two and the numerous
potential complications with menstruation.
In Marion’s Case, Justice Brennan defined
medical treatment as therapeutic “when it is
administered for the purpose of preventing,
removing or ameliorating a cosmetic
deformity, a pathological condition or a
psychiatric disorder, provided the treatment
is appropriate for and proportionate to
the purpose for which it is administered.”4
Therapeutic has also been termed as
“procedures that are necessary to ‘save life’
or prevent ‘serious damage’ to health.”5 In
contrast, non-therapeutic treatment that has
been described as a ‘planned’ procedure that
is not required for medical reasons.
Despite the lack of clarity on this matter in
medicine and in law, for the purpose of this
paper:
‘Therapeutic sterilisation’ will be defined
as a by-product of a life saving procedure
performed in a medical emergency to
prevent serious harm.
‘Non-therapeutic sterilisation’ will be
defined as any planned procedure
performed for any reason other than to
save the patient’s life.
(c)
Disability
Girls with a disability who are subject to
sterilisation are of varying ages and levels
of capacity, but it is understood the primary
targets are pre-pubescent or adolescent girls,
who have intellectual disability, and ‘impaired
1
‘Sterilization’, Concise Medical Dictionary (Oxford University Press, 8th ed, 2010) 1080.
2
Susan M Brady & Dr Sonia Grover, ‘The Sterilization of Girls and Young Women in Australia: A Legal, Medical and
Social Context’, Submission to Human Rights and Equal Opportunity Commission, December 1997, 3(C).
3
Lorraine Pacey and the Women’s Health Editorial Committee (eds), Hysterectomy fact sheet (Women’s Health
Queensland Wide Inc, 2011) 2.
4
Secretary, Department of Health and Community Services v. J.W.B and S.M.B (1992) 175 CLR 218, 269 (‘Marion’s Case’).
5
Lesley Naik, Submission No 7 to the Senate Community Affairs Committee, Senate Inquiry into Involuntary and Coerced
Sterilization of People with Disabilities in Australia, December 2012, 6.
3
capacity’.6 Whilst these terms differ nationally
and internationally, the World Health
Organisation (WHO) has developed a broad
definition for intellectual disability:
be used exclusively in reference to intellectual
disability and any instigating or intersecting
disabilities.
1.2
Intellectual disability means a significantly
reduced ability to understand new or
complex information and to learn and
apply new skills (impaired intelligence).
This results in a reduced ability to
cope independently (impaired social
functioning) [...] Disability depends not
only on a child’s health conditions or
impairments but also and crucially on the
extent to which environmental factors
support the child’s full participation and
inclusion in society.7
There is no uniform test to determine
incapacity. It has been defined as an
“impairment of mental functioning such that
a person is unable to understand, retain, and
weigh up information so as to communicate
a choice or preference.”8 In Australian law,
states and territories have attempted to define
‘capacity’ to different degrees, for example in
South Australia “’mental incapacity’ means
the inability for a person to look after his or her
own health, safety or welfare or to manage
his or her own affairs.”9
Whilst ‘disability’ is “an umbrella term,
covering impairments, activity limitations,
and participation restrictions”,10 for the
purpose of this essay the term ‘disability’ will
Parameters
This paper has certain parameters. There
will be a specific focus on girls under the
age of 18. Children and adolescents require
more defensive rights and protective laws
due to their vulnerability. This essay will not
attempt to measure or explore the capability
of a person - with or without a disability - to
raise a child. Such a topic is a divisive and
difficult issue of its own. Furthermore, while
it is recognised that males with disability
experience involuntary sterilisation, boys and
men with disability will be excluded due to
the overriding majority being performed on
women and girls.
1.3
Justification
(a)
Historical context of eugenics
The history of ‘eugenics’ and ‘fertility control’
are closely linked. From the 1800’s to early
1900’s in Australia, migrants were selected
based on economic situation, disability and/
or race, and forced or coerced to take birth
control or be sterilised under the guise of ‘public
health’.11 In the early to mid twentieth century,
psychiatrists began exploring the biological
differences of the ‘mentally defective’ to prove
it would be unwise to encourage continued
fertility.12 In the 1930’s, Nazi Germany sterilised
6
Senate Community Affairs References Committee, Inquiry into the Involuntary or Coerced Sterilisation of People with
Disabilities in Australia (2013) 4 (‘Senate Inquiry’).
7
World Health Organisation Regional Office for Europe, Definition: Intellectual Disability (2018) <http://www.euro.who.
int/en/health-topics/noncommunicable-diseases/mental-health/news/news/2010/15/childrens-right-to-family-life/
definition-intellectual-disability>.
8
‘Incompetence, (2) Incapacity’, Concise Medical Dictionary (Oxford University Press, 8th ed, 2010) 559.
9
Guardianship and Administration Act 1993 (SA) s 3.
10 World Health Organisation, Disabilities (2018) <http://www.who.int/topics/disabilities/en/>.
11
Susanne Klausen and Alison Bashford, ‘Fertility Control: Eugenics, Neo-Mathusianism, and Feminism’ in Alison Bashford and Phillippa Levine, The Oxford Handbook of the History of Eugenics, (Oxford University Press, 2010) 98, 104.
12 Matthew Thomson, ‘Disability, Psychiatry, and Eugenics’ in Alison Bashford and Phillippa Levine, The Oxford Handbook of the History of Eugenics, (Oxford University Press, 2010) 116-111.
4
“mentally and physically disabled people [and]
women whose promiscuity was perceived as
a symptom of mental deficiency”13 as part of
their goal to create a ‘pure race’. The stigma
from the use of biological eugenic methods in
World War Two decreased many sterilisation
programs and tightened laws - but not all.
Discriminatory views of people with disability
- principally intellectual disability - as “unfit” to
have reproductive rights continue today.
the kinship of menstruation has constantly
bonded young women. Femininity and what
it means to be a woman should not be wholly
linked to biology; however, many of our innate
feelings toward ‘growing up’ do derive from
bodily changes. Young women who have
experienced sterilisation have exhibited many
long-term health issues, and no girl child
should be subject to this for non-therapeutic
reasons.
(b)
For girls in general, sterilisation is rarely an
appropriate procedure. If used, this is only as
a last resort by-product of another surgery.
The most common therapeutic reasons for
performing a sterilisation surgery are all very
unusual for a girl under 18 years. Diseases of
the reproductive tract rarely affect young
women; and treatment of cancer using
chemotherapy has only a small and unlikely
chance of resulting in sterilisation.17 Common
disorders in women requiring treatment,
including dysmenorrhea, menorrhagia,
and pre-menstrual syndrome, are rarely
treated with surgery for girls. Menstrual
irregularities and problems occur frequently
in adolescent girls and are likely to be resolved
naturally.18 It has been found that “the onset
of menstruation is the same for girls with and
without intellectual disability, and girls with
intellectual disability present with the same
type of menstrual problems as the rest of the
young female population”.19 Therefore, most
menstrual issues in girls with disability are not
life threatening, do not require therapeutic
Present vulnerability
Throughout history - and to the present day persons with disability have been continually
viewed as “lesser” or “inferior”, and therefore
have been unjustly denied rights. Girls with
disability are extremely susceptible to human
rights violations due to their age, gender
and disability. Girls with disability are 3 to 4
times more likely to experience violence than
their peers without disability;14 continue to be
denied the right to make decisions about their
own body;15 and more than 70% of females
with disability experience sexual violence at
some point in their life.16 Yet, no conclusive
national studies or commissions have been
undertaken to understand the true extent of
involuntary sterilisation in Australia.
2.
Developing Womanhood
Every girl - with or without disability - should be
granted the time to biologically develop into
a woman. It is both mentally and physically
healthy to allow girls to acquire their sense
of womanhood. Whilst not all stereotypes
toward menstruation are positive, over history
13 Klausen and Bashford, above n 11, 105.
14 WWDA Youth Network, ‘Position Statement 1: Violence’ (2017) Women with Disabilities Australia 3.
15 WWDA Youth Network, ‘Position Statement 2: Decision-Making’ (2017) Women with Disabilities Australia 3.
16 WWDA Youth Network, ‘Position Statement 4: Sexual & Reproductive Rights’ (2017) Women with Disabilities Australia 3.
17 Brady and Grover, above n 2, 26, a 10-year study of the Royal Children’s Hospital found no cases of a disease that lost
function of both ovaries.
18 Ibid, 27.
19 Ibid, 28.
5
surgery, and will be rectified in time.
2.1
Menstruation
Societies and cultures all over the world
continue to hold negative views about
menstruation. However, the self-esteem and
self-value of adolescent girls is increased when
the process into womanhood is celebrated.20
In Laura Fingerson’s book Girls in Power:
Gender, Body, and Menstruation in Adolescence,
she explores the social perceptions of
adolescent menstruation, varying from “it’s
messy, and it’s gross”21 to “[menstruation]
makes us stronger”22. Her findings
revealed that - whilst adolescent girls have
unpredictable feelings toward menstruation
itself - for all it affirmed their womanhood.
Family and schools that promoted sexual and
reproductive health positively and provided
premenstrual preparation, helped make the
transition more empowering. Part of this
adolescent empowerment is not seeing their
menstruation as ‘medical’. Instead, girls want
to make it their own - a part of them that is
different from boys - and a shared bond with
other girls.
A girl’s menstrual status and experience
can be an important focus of her everyday
interactions. This is different from most
adults’ experiences, where menstruation
is not as salient to their lives as it is to the
lives of adolescents.23
Puberty, and the biological transformation
from girl to woman is certainly a difficult time
for all females, with or without an intellectual
disability. It is complicated coming to terms
with changes - psychologically and physically
- and monitoring those to appropriately
engage socially. Hormones instigate changes
to mood and behaviour, and young women
must become familiar with menstrual hygiene,
management, and taboos. Some girls cope
better with this transition, principally due to
appropriate preparation by parents, schools
and community groups. Many parents of
children with a disability have come out
supporting their daughters’ bodies and the
celebration of becoming a woman.
Despite this, non-therapeutic sterilisation
applications to the Family Court emphasize
menstruation as a ‘problem’. Girls
presented to the courts often have little or
no communication abilities24 and cannot
effectively communicate their menstrual
pain, fatigue and physical discomfort.25 The
physical toll can be upsetting and excessively
demanding on a girl’s health. It is believed that
removal of the uterus can reduce suffering;
relieve “heavy and painful periods”;26 and
increase the quality of life. Permanently
stopping menstruation removes the personal
care tasks associated with menstrual hygiene
and management - particularly when the
young woman refuses to wear menstrual
pads. There are numerous alternatives
to manage menstruation, primarily oral
contraceptives and hormonal devices - most
of which are very successful. However, certain
girls may be unable to tolerate medication
given orally or by injection. Others fear health
20 Laura Fingerson, Girls in Power: Gender, Body, and Menstruation in Adolescence (Albany State University of New York
Press, 2006).
21 Ibid, 1.
22 Ibid.
23 Ibid, 148.
24 Name Withheld, Submission No 10 to Senate Community Affairs References Committee, Inquiry into the Involuntary or
Coerced Sterilisation of People with Disabilities in Australia (2013).
25 Brady and Grover, above n 2, 30.
26 Re Angela (2010) 43 Fam LR 98 [29].
6
care facilities, making it distressing for the
young woman to return every 3 to 5 years to
have a device replaced.27
The court’s sterilisation applications require
all reversible contraceptive options to be tried
as an essential prerequisite to a permanent
surgery. Unfortunately - as long as one
option has been attempted - this step is
often excused due to the exhausting nature
of trying new pills or devises. In such cases,
the court will rely on a health professional’s
opinion, stating that alternate options ‘may
not work’. Such opinions are troubling and
discriminatory. Many women struggle at first
to find an appropriate contraceptive option.
This is particularly common in adolescences
whilst the menstrual cycle is not yet ‘regular’
and the body is not fully developed. These
issues are the same for young women with or
without disability. Health professionals would
never make the same judgment about girls
without disability until all options had been
tested.
2.2
Mood and Behaviour
Management
Cases often cite ‘mood swings’ and
‘behaviour’ during menstruation as necessary
reasons to sterilise. Whilst these symptoms can
be linked to the menstrual cycle, Brady and
Grover’s study of legal sterilisation of young
women, found that the behaviours described
in sterilisation cases are too easily attributed
to menstruation. They may in fact be
“manifestations of stressful environments or
adolescence”.28 If the mood swings are based
in biology (not environment) the only effective
sterilisation option is a total hysterectomy,
removing both ovaries. This will have negative
ramifications, particularly for long-term
health and wellbeing. Hormonal supplements
for early menopause will need to be taken,
which can also lead to numerous physical and
psychological ailments. Likewise, for girls with
epilepsy there will be no greater control over
seizures unless the ovaries are removed, and
even then there are no guarantees.29
Sterilization cases frequently rely on guardians
providing evidence of a child’s challenging
behaviour. Parents have described escalated
pre-menstrual mood swings and distress due
to the inability to cope with menstruation.30
Emotional reactions and “phobias” of blood
are mentioned, with symptoms including
screaming, crying and self-mutilation.31
Inappropriate social behaviour during
menstruation is described, such as menstrual
smearing, and publically exposing soiled
hygiene products.32 These problematic
behaviours have been acknowledged as
impacts to social opportunities. Possible
tantrums or public humiliation may prevent
attendance at school or at community
events.33
Behaviour and hygiene will not be magically
“fixed” through an operation. Environment,
hormones, mental and physical illness, and
many other causes can alter mood. Programs
to support the transition into womanhood -
27 Re Edith (2014) FamCA 908, [28-30].
28 Brady & Grover, above n 2, 32.
29 Ibid.
30 John and Merren Carter, Submission No 20 to Senate Standing Committee on Community Affairs,
The Senate Inquiry into Involuntary or Coerced Sterilisation of People with Disabilities in Australia, February 2013.
31 Re Edith (2014) FamCA 908.
32 Name Withheld, Submission No 11 to Senate Community Affairs References Committee, Inquiry into the Involuntary or
Coerced Sterilisation of People with Disabilities in Australia (2013).
33 John and Merren Carter, above n 30.
7
for both parents and daughters - are essential.
It has been found that comprehensive and
accessible programs to inform young women
about sexual and reproductive health greatly
assist in this transition. Whilst trying menstrual
management programs is a prerequisite
for sterilisation applications, it has become
clear that limited funding goes into such
programs. The program should ideally be
commenced pre-menses and continued into
adolescence, and must be employing a form
of communication accessible to the girl. These
should be participated in alongside behaviour
management programs. Without these steps,
it is difficult to tell if the program will ease
menstrual anxieties and management - for
the girls and for their parents.
2.3
Emotional Relief
Girls with disability are more susceptible to
sexual abuse than girls without. Whilst it
has been made clear that a court cannot
approve a sterilisation on the grounds of
potential sexual abuse, this is still frequently
mentioned in cases as an ‘additional’ positive
outcome. Guardians often fear the risk of
their child being abused and becoming
pregnant.34 A pregnancy for any girl under
18 (through consensual or nonconsensual
sex) is potentially emotionally and physically
distressful. However, for a girl with disability,
pregnancy is regarded as potentially
dangerous as she may not understand the
connections between sex, pregnancy and
birth. Additionally, she may be unable to cope
with the health impacts of pregnancy on body.
Many parents consider their daughter unable
to raise a child, and therefore the baby would
need to be raised by them. Parents argue
that due to their age, and the need to care
for their own child into adulthood, they would
be unable to support a new baby. Therefore,
the baby must be aborted or taken away by
authorities. Neither of which are viewed as
‘ideal’ options. Despite the potential difficulties
involved with a pregnancy, it is absolutely
unconscionable to request the sterilisation
of any child due to a potential pregnancy
through sexual abuse. Sterilization of girls
only masks the real issues - and perhaps
even increases vulnerability to abuse without
risk of being caught. The onus is on parents,
guardians, carers, government and society to
ensure these girls are not exploited or abused.
The significant role parents and guardians
play in understanding a girl’s situation should
not go without recognition. These girls require
full-time assistance, and parents articulate
their exhaustion from the ‘burden of care’35
and the lack of support for them and their
daughter. For parents, fear and anxiety
play a large part in the decision to apply for
sterilisation. There is a shared fear about
the future: what will happen when they age
and become less capable to care for their
daughter? What will happen if they suddenly
die? Will she be put in an institution? If so, will
she be protected adequately? These fears
are profuse, and sterilisation can be seen as
having “one worry alleviated”.36
The fears parents express are genuine and
should be considered - but not put in front of
the emotional welfare of the girl herself. The
effects of sterilisation - particularly to a girl can be severe, even when she does not fully
comprehend the impact of the procedure.
Research has shown that the postoperative
34 Re Sarah (1993) FamCA 124. Example from Re Sarah, “the parents, in particular, were concerned about the prospect
of sexual abuse of Sarah, resulting in pregnancy.”
35 See, e.g., Re Edith (2014) FamCA 908 [17], [44]; ‘Marion’s Case’ (1992) 175 CLR 218, 269 [16], [20], [50], [54]; Submission No
10, above n 24.
36 Name Withheld, Submission No 6 to Senate Community Affairs References Committee, Inquiry into the Involuntary or
Coerced Sterilisation of People with Disabilities in Australia (2013).
8
effects of sterilisation run deep. Young women
are the most negatively affected, experiencing
a fractured gender identity, and a loss of
femininity and sisterhood, with one woman
saying after her hysterectomy, “I feel less
feminine. They have, in a way, removed what
made me a woman, what distinguishes a man
from a woman.”37 Young women who are not
mentally prepared are the most likely to be
negatively affected by the surgery; and it is
not only the sense of womanhood that is lost.
The “feelings of sadness and hopelessness;
less interest in activities; sleep disturbance;
decreased libido; lack of energy; and thoughts
of death or suicide”38 can be overwhelming.
Even women who have no intention of having
children are still likely to grieve for their loss of
reproductive capability.39 Many such women
have described feeling an emptiness; have
pled for their uterus back; have “flooding
memories in response to sudden reminders”;
and “unwanted thoughts about surgery.”40
All girls have a right to enter womanhood; to
experience the frustrations and joys; and to
allow their body time to regulate. Sterilization
may (or may not) be the best option medically
for an adult, but there is no reasonable
medical need for a child to be denied the
chance to develop into a woman.
3.
Responsibility to Protect Rights
Australia has a legal obligation to implement
appropriate laws and procedures to comply
with the United Nations treaty principles. Nontherapeutic sterilisation of girls with disability
is a violation of the human rights held by all
children. By continuing the legal practice
of these procedures, Australia violates its
legal obligations enshrined in numerous UN
Conventions to which it is a party, particularly
the Convention on the Elimination of All
Forms of Discrimination Against Women
(CEDAW)41; Convention on the Rights of
Persons with Disabilities (CRPD)42; Convention
on the Rights of the Child (CRC)43; Convention
Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT)44;
International Covenant on Civil and Political
Rights (ICCPR)45; International Covenant
on Economic, Social and Cultural Rights
(CESCR)46. Australia has obligations to uphold
the sexual and reproductive rights of girls with
disability, and prevent harmful practices and
discriminatory treatment. Unfortunately, the
government is failing to fulfil its human rights
37 Kari Nyheim Solbrække and Hilde Bondevik, ‘Absent organs - Present selves: Exploring embodiment and gender
identity in young Norwegian women’s accounts of hysterectomy’ (2015) 10 International Journal of Qualitative Studies in
Health and Well-being 1, 7. See also, Nancy B. Kaltreider, Anne Wallace and Mardi J. Horowitz, ‘A field study of the stress
response syndrome: Young women after hysterectomy’ (1979) 242(14) The Journal of the American Medical Association
1499.
38 Lorraine Pacey and the Women’s Health Editorial Committee, above n 3.
39 Ibid 1.
40 Kaltreider, Wallace and Horowitz, above n 37, 1501.
41 Convention on the Elimination of all forms of Discrimination Against Women, opened for signature 18 December 1979,
1249 UNTS 1 (entered into force 3 September 1981) art 1, 2, 10, 12, 16 (‘CEDAW’).
42 Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into
force 3 May 2008) art 5, 6, 7, 23, 25 (‘CRPD’).
43 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 2, 4, 5, 18, 23 (‘CRC’).
44 Convention Against Torture and other cruel, inhuman or degrading treatment or punishment, opened for signature 10
December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 1, 16 (‘CAT’).
45 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into
force 23 March 1976) art 3, 24, 26 (‘ICCPR’).
46 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3
(entered into force 3 January 1976) art 2, 3, 12 (‘CESCR’).
9
obligations to provide support and services.
This has led desperate parents to seek nontherapeutic sterilisation for their daughters.
There is a clear violation of rights occurring
- and an obvious solution to protect human
rights and assist parents.
3.1
Sexual and Reproductive Rights
Non-therapeutic sterilisation of girls with
disability is seen as a blatant violation of
their sexual and reproductive rights. It is a
prejudicial treatment that explicitly affects
rights around family planning, health, sex and
bodily integrity,47 evident in CRPD article 23:
States Parties shall take effective and
appropriate measures to eliminate
discrimination against persons with
disabilities in all matters relating to
marriage, family, parenthood and
relationships, on an equal basis with
others, so as to ensure that [...] Persons
with disabilities, including children,
retain their fertility on an equal basis with
others.48
It cannot be ignored that girls without
disability, and boys with or without disability,
do not undergo sterilisation unless in a lifesaving situation. Therefore, Australia is
expressly violating its human rights obligations
by denying fertility to girls with disability.49 The
right to reproductive choice is ingrained in
the human rights Conventions and is innately
held by all women. Reproductive functions
should be protected and bodily integrity must
be respected. This is very clear in numerous
Conventions and therefore
reinterpreted by State parties.
cannot
be
It has been contended by pro-sterilisation
activists that the sterilisation procedure may
provide the child with a more dignified life. Dr
Wendy Bonython stated in the Senate Inquiry,
“the right to produce and have a family are
not the only human rights we recognise
[...] There are other rights as well, including
dignity and quality of life, that are just as
important to the individual.”50 With or without
their fertility, girls with disability carry many
additional burdens, including communicative,
social, emotional and physical. Ceasing
menstruation may increase self-reliance,
active social participation and the mental and
physical fulfillment of a ‘decent life’.51 Whilst it
would be eliminating one right, the increased
enjoyment of other rights may better promote
the entitlement written in Article 23 of the CRC,
for a child “to be treated with dignity and
respect.”52
By agreeing that certain rights may flourish if
others are denied, the Australian Government
is actively trading-off rights. All rights must
be recognised on an equal basis. A higher
value cannot be placed on one over another.
Presently, a damaging judgement is being
made on what a girl with disability does
and does not ‘need’ in her life. The State has
decided that she will gain a more socially
inclusive, decent life with greater dignity
and respect (‘needs’) if she loses her fertility
(‘does not need’). Responding this way is
discriminatory and therefore a violation of one
of the foundational human rights principles.53
47 CRC art 24; CRPD art 17, 23 and 25; CEDAW art 10, 12 and 16; and CESCR art 12
48 CRPD art 23 [1](c).
49 CEDAW preamble states, “The role of women in procreation should not be a basis for discrimination”.
50 Senate Inquiry, above n 7, 90 [4.22].
51 CRC art 23.
52 CRC General Comment No 9, 43(d).
53 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Session, 183rd plen mtg, UN Doc A/180 (10
December 1948) art 7, ‘All are equal before the law and are entitled without any discrimination to equal protection of
10
The state must provide assistance - through
legislation, programs and services - to ensure
all rights are fulfilled. Nobody’s bodily integrity
should be traded-off to retain other rights.
3.2
Parental Rights
The UN Committees have acknowledged
that the desire to have girls with disability
non-therapeutically sterilised, stems from a
lack of support for parents and carers. They
expressed concern about the State’s failure
to provide adequate assistance, including
“different forms of respite care, such as
care assistance in the home and day-care
facilities directly accessible at community
level.”54 This familial support is enshrined in
in both the CRC55 and CRPD.56 By ratifying, the
Australian Government acknowledged they
would be obliged to provide “comprehensive
information, services and support to children
with disabilities and their families”.57
There is a common impression that the
government and society have “washed their
hands of the responsibility”58 of children
with disability and their families. Sterilization
and the right to fertility easily gain public
attention and criticism of the parents. Yet
parents and carers continue to struggle with
inadequate assistance and poorly funded
programs, facilities and services for their
children. The application for their daughter’s
non-therapeutic sterilisation is more than an
issue of menstrual suppression for families; it
is a last resort due to the lack of support. Extra
pressure is placed on carers, parents and
guardians; and this affects the fulfillment of
their own human rights. Not only their rights
as parents,59 but also their right live free from
discrimination, and to enjoy their highest
attainable standard of physical and mental
health.60
Every individual human has value and
therefore his or her rights are of equal
importance. A parent holds rights as both an
individual and a carer. As a carer, the State
must provide assistance to ensure that they
are able to adequately fulfil their responsibility
without diminishing their rights as an
individual. Most parents seeking sterilisation
of their child are doing so out of love. They view
it (perhaps mistakenly) as the best option,
due to the State’s failure to live up to its other
human rights responsibilities. In general, a
parent does not wish to intentionally trade-off
one of their child’s rights for another. However,
when lacking respite care and assistance,
parents may view the benefits of sterilisation
out weighing the loss. That is a horrific and
preventable position to put both a parent and
child into.
3.3
Discrimination
Non-discrimination and equality are the
foundation of all human rights treaties.
References toward non-discrimination, equal
and dignified treatment and empowerment
for children, women and people with disability,
are embedded in all the aforementioned
the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against
any incitement to such discrimination.’
54 Committee on the Rights of the Child, General Comment No 9: The Rights of Children with Disabilities, 43rd sess, UN Doc
CRC/C/GC/9 (27 February 2007) VI [A](41).
55 CRC art 23.
56 CRPD art 23.
57 Ibid.
58 Name Withheld, Submission No 4 to Senate Community Affairs References Committee, Inquiry into the Involuntary or
Coerced Sterilisation of People with Disabilities in Australia (2013).
59 CRC art 5.
60 CESCR art 2 and 12.
11
treaties.61 The State’s responsibility to prevent
discrimination is summed up in CRPD article 5:
“States Parties shall prohibit all discrimination
on the basis of disability and guarantee to
persons with disabilities equal and effective
legal protection against discrimination on all
grounds.”62 Due to their age, sex, and disability,
girls with disability are highly exposed to
discrimination. The CRC has discussed on
numerous occasions the need for girls with
and without disability to be treated equally.
In their Concluding Observations, the CRC
Committee urged Australia to
Enact non-discriminatory legislation that
prohibits non-therapeutic sterilization of
all children, regardless of disability; and
to ensure that when sterilisation which is
strictly carried out on therapeutic grounds
does occur, that this be subject to the
free and informed consent of children,
including those with disabilities.63
Non-therapeutic sterilisation of a child is
recognised as a harmful practice64 due
to the mental and/or physical suffering
that accompanies the procedure, and it
being grounded in discrimination. It is also
recognised as a form of torture or other
cruel, inhuman or degrading treatment or
punishment. In its review, the CAT Committee
recommended that Australia “enact uniform
national legislation prohibiting, except where
there is a serious threat to life or health, the
use of sterilization without the prior, free and
informed consent of the person concerned.”65
The Commonwealth Attorney-General’s
Department advised that it is Australian
policy to become party to a United Nations
treaty only once it has ensured “any necessary
implementation action has been taken, either
by the Commonwealth or by State or Territory
Governments.”66 This includes undertaking a
national analysis to guarantee all “legislation,
policies and programs are in compliance with
the immediately applicable obligations and
substantially achieve implementation of the
progressively realisable obligations”67 under
the treaty. The Australian Government firmly
regards the State as complying with their
obligations under the Treaties to which they
are party. Yet, it has become evident that the
Australian Government deems the human
rights to bodily integrity and freedom from
harmful practices as being only applicable
if the individual has ‘mental capacity’. This
promotes a view that girls with disability do not
have “full humanness,”68 and simultaneously
fails to recognise the procedure as an act of
abuse and discrimination. Whilst it may be
more economic in the short-term to discount
the human rights of a limited number of girls,
introducing adequate supports and services
61 CRC art 2 and 23; CRPD art 5, 6 and 7; CEDAW art 1 and 16; CAT art 1; CESCR art 2 and 3; and ICCPR art 3, 24 and 26.
62 CRPD art 5[2].
63 Committee on the Rights of the Child, Consideration of reports submitted by States parties under article 44 of the Convention, Concluding Observations: Australia, 60th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012) 14[58](f)
64 Committee on the Elimination of Discrimination Against Women and Committee on the Rights of the Child, Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination Against Women / general comment No.
18 of the Committee on the Rights of the Child on harmful practices, UN Doc CEDAW/C/GC/31-CRC/C/GC/18 (14 November
2014) 5 [15], ‘Harmful practices are persistent practices and forms of behaviour that are grounded in discrimination
on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or suffering’.
65 Committee Against Torture, Concluding observations on the combined fourth and fifth periodic reports of Australia, UN
Doc CAT/C/AUS/CO/4-5 (23 December 2014) [20].
66 Senate Inquiry, above n 6, 87 [4.13].
67 Ibid.
68 Linda Steele, ‘Court Authorised Sterilisation and Human Rights: inequality, discrimination and violence against women and girls with disability’ (2016) 39(3) UNSW Law Journal 1002.
12
is a more sustainable, effective, and humane
option.
in a ‘justified’ manner; and traded-off equal
treatment for the cheapest option.
Australia has reported that adequate
safeguards have been implemented to ensure
any non-therapeutic sterilisation of a girl with
disability is justified. One of these safeguards
was put in place through the Senate Inquiry,
to better abide by the CRPD. It established
a replacement for the ‘best interests’ test used in cases for non-therapeutic sterilisation
of minors - with the more stringent ‘best
protection of rights’ test.69 This new legal test
aims at regulating sterilisation cases through
a human rights perspective - ensuring that
only applications promoting the maximum
positive outcomes for the person; their
rights; their future; and their quality of life,
will be considered. However, this test is
merely a pragmatic middle ground, which
still fails to recognise that this procedure
is a discriminatory and harmful practice.
The impartiality of this decision places the
government in an ideal position, between
fulfilling human rights obligations and
appeasing certain social groups. This ‘neutral
ground’ does not provide Australian children
or their parent’s adequate protection; it fails
to live up to human rights obligations; and
is nothing more than a politically appealing
gesture.
4.
The Australian Government claims that it has
enforced legislation to abide by its human
rights responsibilities, but instead interprets
the treaty articles in the way it deems best.
Committee observations and comments are
made to guide a State on how the rights and
articles should be understood and enforced.
Yet, Australia continues to ignore the call
to end non-therapeutic sterilisation of girls.
Australia has traded-off certain rights in place
of ‘safeguards’ to continue harmful practices
The Law Must Protect
Australian law fails to protect girls with
disability from a practice that is widely viewed
as discriminatory and harmful. By continuing,
Australia is not only negating its responsibility
to implement human rights into its legislation,
but is also preserving a legal eugenics
program. In States internationally, legislation
has been effectively amended to ensure the
prohibition of non-therapeutic sterilisation
of children. Cases of eugenics from the
past have become recognised as wrongful
and victims have been compensated.
Shockingly, these eugenic programs have
many similarities to current Australian
laws. Australia has a responsibility for the
welfare of all citizens, yet specifically denies
a girl with disability equal legal protection.
Fortunately, harmful practices comparable to
sterilisation have been outlawed in Australia.
This demonstrates that potential alterations
can be made to the existing legislation, if the
Australian Government were willing to make a
proactive change.
4.1
Legislation
Many other States have demonstrated
legislative efforts to eliminate forced
sterilisation of children with disability. After a
review by the Irish Human Rights Commission,70
it was recommended that legislation
regarding non-therapeutic sterilisation be
amended to become compatible with the
CRPD. The Assisted Decision-Making (Capacity)
Act 2015 was amended. It was not followed
up with criminal sanctioning. However, it did
provide explicit legislation that no person,
including a State authority, can “give consent
for a non-therapeutic sterilisation procedure
69 Senate Inquiry, above n 6, 130 [5.121].
70 Irish Human Rights Commission, Observations on the Assisted Decision-Making (Capacity) Bill 2013 (2014).
13
to be carried out on a person who lacks
capacity.”71 Whilst laws on sterilisation vary
in the United States of America, California
has very strict legislation on the performance
of sterilisation and informed consent. The
California code recognises that:
A sterilization shall be performed only if
the following conditions are met: (1) The
individual is at least 18 years old at the time
the consent is obtained. (2) The individual is
able to understand the content and nature of
the consent process.72
This law is reiterated in the California Probate
Code, making it clear that neither a guardian
nor an authority of the court may permit
sterilisation of a minor.73 A woman over 18
may be sterilised, but not without her full
knowledge and consent - this includes suitable
arrangements being made to effectively
communicate all information.
Australia, like most other countries, maintains
an opposition to total prohibition of nontherapeutic sterilisation of women and girls
with disabilities. However, as previously
mentioned, Australia has enforced measures
to restrict applications for sterilisation.
To create national uniformity and avoid
inconsistencies, the Protocol for Special Medical
Procedures (Sterilisation) (“The Protocol”) has
been adopted in all Australian states and
territories. The Protocol involves three phases:
(1) The Application; (2) The Thresholds; (3)
The Determination. For a child, one or both
parents; a medical practitioner; or a person
who can demonstrate great interest in the
care and welfare of the child; can apply for
her sterilisation. The application must provide
proof of the child’s incapacity to consent to the
procedure; establish that all alternative and
less invasive procedures have been explored;
and provide medical advice that this is in the
child’s best interests. Once the tribunal has
received the application, two thresholds must
be passed. First, lack of capacity must be
assessed and determine that she is incapable
- and will continue to be incapable - of making
this decision herself. Second, the tribunal will
assess whether sterilisation is required, and
ensure that there is no less invasive option
available. Finally, a hearing will be held and
a decision made based on the information
found in the application, evidence, and reports
from health providers. All the applications
must be go through the Family Court, or in
certain States, a Tribunal. The Each State and
Territory legislation has different definitions
for ‘sterilisation’ and ‘capacity’, but all must
apply tests to ensure the welfare of the child.
Given the stringent nature of this process,
many guardians have found it necessary to
go overseas for a procedure. The fact that
certain parents are using ‘medical tourism’
and going to countries like New Zealand and
Thailand has been used to demonstrate that
Australian regulations are not only tight, but
also in the best interests of the child.
The explicit legislation in other States
- including Ireland and California (US) demonstrate that it is not only possible,
but also positive to completely prohibit
non-therapeutic sterilisation of minors.
These States have been commended for
encouraging the fulfilment of CRPD obligations
in this regard. Their actions demonstrate
genuine application of International Human
Rights Law into legislation. Informed and
independent consent is essential in both
Ireland and California to ensure that
legislation does not negatively target persons
with disability. The fact that other States view
71 Assisted Decision-Making (Capacity) Act 2015 (Ireland) 4[4].
72 California Code of Regulations, 22, CCR §§ 70707.3-70707.7 (1990)
73 California Probate Code, 5, Cal Prob Code §2356 (1999).
14
this procedure so seriously reflects poorly on
the Australian Government, who is willing
to continue the degrading treatment in the
name of ‘best interests’. Australia has set up
a National Protocol to safeguard children,
and this has provided additional challenges
to prevent cases being approved. However
- despite adding a level of difficultly - it has
not necessarily ‘protected’ children. It is
widely know that girls with disability are nontherapeutically sterilised under the guise of
a ‘therapeutic surgery’. This is illegal, but is
not actively investigated, so no data on the
prevalence has been collected. Likewise,
parents are known to take their daughters
overseas to have the procedure. There is no
available data on this either, but it is legal.
This is dangerous as girls can be legally taken
to procure the operation in countries with
even fewer safeguards.
4.2
Case Law
Governments in other countries have
begun accepting responsibility for their role
in sterilising girls with disability. Between
1924 and 1979, Virginia and North Carolina
(hereafter known as the “US Cases”) had
eugenic sterilization laws; primary targeting
female children and adolescents deemed
mentally or physically unfit to procreate.
The Virginia Sterilization Act 1924 stated that,
“the health of the individual patient and the
welfare of society may be promoted in certain
cases by sterilisation of mental defectives
under careful safeguard and by competent
and conscientious authority”74 and must be in
“the best interests of the patients.”75 Eugenical
Sterilisation in North Carolina similarly viewed
sterilisation to be for “the best interest of the
mental, moral or physical improvement”76
of the individual. The law was believed to be
abiding with the constitution by not depriving
life or liberty, and ensured the individual had
“ample opportunity to be heard.”77 Despite
both states considering the procedure to be in
the ‘best interests’ of the individual, and that the
appropriate ‘safeguards’ were in place, both
State Governments have formally apologised
and begun compensating the victims of the
sterilisation laws. Similarly, in the case of Leilani
Muir v Alberta Government (1989), Muir sued for
damages due to an unwanted and wrongful
sterilisation when she was 14-years-old. Muir
had been labelled a “mental defective moron” and sterilisation was approved on the
basis of her possibly transmitting her disability
through procreation, and being incapable of
parenthood. The Alberta Government was
forced to pay damages as a punishment
to the Province. Many forced sterilisation
cases have applied to the European Court
of Human Rights, most notably Gauer and
others v France (2008). In this case, five women
with intellectual disabilities had been forcibly
sterilised. The Court commented that the
“forced sterilisation of women with disabilities,
and the inadequacy of State responses to it,
represent grave violations of multiple human
rights.”78 The case verified that France was
violating international human rights and has
a “positive obligation to apply stringent and
effective safeguards to protect persons with
disabilities from forced sterilisation.”79
In the ‘Marion’ Case, the High Court discussed
and determined the role of the Family Court
in sterilisation case authority. The High
74 Virginia Sterilization Act 1924
75 Ibid.
76 Secretary of Eugenics Board of North Carolina, Eugenical Sterilization in North Carolina: Purpose, Statutory Provisions,
Forms and Procedure (1938) 8.
77 Ibid 7.
78 Gauer and Others v France [2011] Eur Court HR (Application no 61521/08).
79 Gauer and Others v France, pt 1, para 2.
15
Court found that the procedure could not be
lawfully authorised by a guardian without
a court order, as it is a procedure involving
“immediate and serious invasion of physical
integrity with the resulting grave impairment
of human dignity.”80 Given the risks, it was
decided that before Court authorisation,
certain safeguards must be in place. The
child must be tested for present and future
capacity to consent; the procedure must be
a ‘step of last resort’; and that the child’s best
interests must be the primary consideration
of the court. The Case of ‘Marion’ set forth a
rigorous (and expensive) process to ensure
safe authorisation. Many cases have followed
- such as ‘Angela’ (2010) and ‘Edith’ (2014) and the processes are normally considered
and obeyed. Both ‘Angela’ and ‘Edith’ were
brought to the Family Court of Australia;
determined the girl incapable of decisionmaking; assumed the procedure was in her
best interests; and had health professionals
state their were minimal risks. However, whilst
other menstrual suppression options were
discussed, in both cases many had not been
tried.
can only be forced if the individual has a
disability making her incapable of consent.
From this, it is clear to see that regardless of
the safeguards put in place by the Australian
Government, it is just a replication of wrongful
laws. Justice Brennan admitted in the
‘Marion’ Case that the involuntary and nontherapeutic procedure seriously damaged
human dignity. In other international cases
- like those presented to the European Court
of Human Rights - Brennan’s message has
been echoed, and nations including France
and Slovakia have been condemned for these
acts. The safeguards put in place by the High
Court of Australia may give the impression of
fairness. However, history has made it clear
that regardless of any legal processes or
safeguards, women with disability - including
Muir, Gauer and Others, and the victims in the
US Cases - suffer from the pain and damage
caused by involuntary, non-therapeutic
sterilisation.
As demonstrated with the compensation of
women in the US Cases, and the payment
of damages to Muir, Western countries are
coming to terms with the fact that forced
non-therapeutic sterilisation of girls based on
their disability is wrong. Even though the other
procedures occurred over 40 years ago under
the label of ‘eugenics,’ there are numerous
similarities to present day Australia. The
safeguards set out in the ‘Marion’ Case are
very similar to those in the US Cases. In both
Australia and the 1900s US, the procedures
require the authorisation of the State; and
the facts and grounds for non-therapeutic
sterilisation must be presented to a special
board. The best interests of the individual are
the principle consideration, and the procedure
16
80 ‘Marion’s Case’ (1992) 175 CLR 218, 322.
Conclusion
So, should Australia make non-therapeutic
sterilisation of girls with disability illegal?
Yes. Australian law must abide by human
rights obligations and protect our nation’s
daughters. Girl children are still young and
vulnerable. They require time to develop into
women and - if capable in adulthood - they
can make informed reproductive choices.
Through current law, girls with disability can
continue to be sterilised for non-therapeutic
reasons as long as guardians and health
practitioners are able to demonstrate it is
in her ‘best interests’. This, however, is still
a violation of human rights doctrines and
observations. By persisting with this practice,
girls with disability will not only continue to
be discriminated against and denied bodily
integrity; they will be exposed to terrible
postoperative mental and physical health risks.
The wellbeing of a girl is strengthened if she
has time to develop her sense of womanhood.
Her body should be allowed time to regulate,
she ought to have access to useful programs,
and make consensual and informed decisions.
Menstruation holds great importance to
a young woman, both through physical
development and due to its sociocultural
importance. Unfortunately, menstruation can
have ‘side effects’, including social taboos,
irregular cycles, mood swings and menstrual
cramps. However, these are not valid reasons
to sterilise a girl. Whilst sterilisation will cease
menstruation, programs to assist in menstrual
management and behaviour management for both girls and parents - would be far more
mentally and physically effectual long-term.
Fears about sexual abuse and pregnancy
should not be ignored, but are insufficient
and inappropriate reasons to forcibly sterilise.
Ultimately, the procedure is on a girl’s body
and affects only her bodily integrity.
There is no acceptable non life-threatening
reason to prevent a girl from developing into
a woman.
By ratifying numerous UN treaties, Australia
has a legal responsibility to protect the rights
of girls with disability. Australia has received
recommendations from UN treaty bodies to
legally prohibit all non life-saving sterilisation
of girls with disability, but continues to violate
their sexual and reproductive rights. The
government has an obligation to provide
support and services to children with disability
and their carers; however, adequate support
has not been made available. This has
resulted in sterilisation being rebranded as
a way for girls with disability to experience
greater enjoyment of other rights - such as
social participation. However, changing
the viewpoint does not solve the problem.
Governments cannot freely exchange rights
for the cheapest or easiest options. Instead
of a rights trade-off, Australia must fulfil
its obligations to provide adequate and
accessible services, programs and support for
girls with disability and their carers.
By failing to enact the appropriate laws,
Australia is continuing a legal eugenics-style
program. More progressive governments
have successfully demonstrated how to
incorporate the CRPD into legislation and
legally prohibit this discriminatory and
harmful practice against children. Similar
governments have started accepting
responsibility for the involuntary sterilisation
practices against girls with disability. After the
Case of ‘Marion’, Australia did put safeguards
in place to protect the dignity of girls with
disability, including a national protocol to
restrict sterilisation applications. However this
was a futile step forward.
17
As international cases have shown regardless of safeguards - performing the
procedure on a girl will cause suffering and
damage. Law must be enforced to prevent
the procedure on minors; a strict definition of
‘therapeutic’ should be written in legislation;
and unwarranted surgeries should incur a
penalty.
It is clear that girls with disability experience
discrimination in many areas of life. Australia
must take greater responsibility in fulfilling their
human rights obligations to prevent all forms
of discrimination and harm. This includes
prohibition of non-therapeutic sterilisation
on girls with disability. Whilst changing this
law will not eliminate discrimination entirely,
it certainly will demonstrate a serious effort
toward equality and fulfilling UN treaty
obligations.
Australia must actively work to create effective
support services and programs to replace
the ‘quick fix’ of sterilisation. Women with
disability may decide - after being educated
on non-therapeutic sterilisation - that they
wish to undertake the procedure. That is
their decision. However, a girl under the age
of 18 should be allowed time to learn about
her body; give her body time to develop and
regulate; and then when she is older, she can
make informed reproductive choices.
18
References
A Articles/ Books/ Reports
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December 1997
Committee Against Torture, Concluding observations on the combined fourth and fifth periodic
reports of Australia, UN Doc CAT/C/AUS/CO/4-5 (23 December 2014)
Committee on the Elimination of Discrimination Against Women and Committee on the Rights of
the Child, Joint general recommendation No. 31 of the Committee on the Elimination of Discrimination
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(28 August 2012)
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Cox, Peta, ‘Violence against women: Additional analysis of the Australian Bureau of Statistics’ Personal
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Secretary of Eugenics Board of North Carolina, Eugenical Sterilization in North Carolina: Purpose,
Statutory Provisions, Forms and Procedure (1938)
19
Senate Community Affairs References Committee, Inquiry into the Involuntary or Coerced Sterilisation
of People with Disabilities in Australia (2013)
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Secretary, Department of Health and Community Services v. J.W.B and S.M.B (1992) 175 CLR 218 (6 May
1992)
Re Angela (2010) FamCA 98
Re Edith (2014) FamCA 908
Re Sarah (1993) FamCA 124
Gauer and Others v France [2011] Eur Court HR (Application no 61521/08)
C Legislation
Assisted Decision-Making (Capacity) Act 2015 (Ireland)
California Code of Regulations, 22, CCR §§ 70707.3-70707.7 (1990)
California Probate Code, 5, Cal Prob Code §2356 (1999)
Guardianship and Administration Act 1993 (SA)
Virginia Sterilization Act 1924
D Treaties
Convention Against Torture and other cruel, inhuman or degrading treatment or punishment, opened
for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention on the Elimination of all forms of Discrimination Against Women, opened for signature 18
December 1979, 1249 UNTS 1 (entered into force 3 September 1981)
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered
into force 2 September 1990)
20
Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515
UNTS 3 (entered into force 3 May 2008)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999
UNTS 171 (entered into force 23 March 1976)
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December
1966, 993 UNTS 3 (entered into force 3 January 1976)
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd Session, 183rd plen mtg, UN
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E Other
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and Coerced Sterilization of People with Disabilities in Australia (December 2012)
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Involuntary and Coerced Sterilization of People with Disabilities in Australia (2013)
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Involuntary and Coerced Sterilization of People with Disabilities in Australia (2013)
Name Withheld, Submission No 10 to Senate Community Affairs References Committee, Inquiry into
Involuntary and Coerced Sterilization of People with Disabilities in Australia (2013)
Name Withheld, Submission No 11 to Senate Community Affairs References Committee, Inquiry into
Involuntary and Coerced Sterilization of People with Disabilities in Australia (2013)
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(Women’s Health Queensland Wide Inc, 2011)
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news/2010/15/childrens-right-to-family-life/definition-intellectual-disability>
21
WWDA Youth Network, ‘Position Statement 1: Violence’ (2017) Women with Disabilities Australia 3
WWDA Youth Network, ‘Position Statement 2: Decision-Making’ (2017) Women with Disabilities
Australia 3.
WWDA Youth Network, ‘Position Statement 4: Sexual & Reproductive Rights’ (2017) Women with
Disabilities Australia 3.
22
PUBLISHING INFORMATION
Dunn, Cashelle (2018). Sterilisation of Girls with Disability: The State Responsibility to Protect Human
Rights. Women with Disabilities Australia (WWDA): Hobart, Tasmania.
ABOUT THE AUTHOR
Cashelle is a gender advisor and intersectional human rights specialist. She has a Bachelor of Arts
(Human Rights) from Monash University and a Graduate Diploma in Human Rights Law from the
University of Melbourne. Cashelle has worked for Women with Disabilities Australia (WWDA) for over
four years. She founded and managed the WWDA Youth Network - a project of WWDA for girls and
young women - whilst simultaneously holding the role of project officer. She has represented the
rights and issues of women and girls on national and international levels and designed numerous
educational human rights resources for girls with disability. In 2015 Cashelle was a finalist for the
National Disability Award – Emerging Leader in Disability Awareness.
Women with Disabilities Australia
PO Box 407, Lenah Valley, 7008 TASMANIA
Contact: Carolyn Frohmader, Executive Director
+61 438 535 123
carolyn@wwda.org.au
www.wwda.org.au
http://www.facebook.com/WWDA.Australia
https://twitter.com/WWDA_AU
Text © 2018 Cashelle Dunn
Design © 2018 Women with Disabilities Australia (WWDA)
Cover illustration © Bigstock/agsandrew