‘State-sanctioned torture’: women with disability continue to suffer forced sterilisation

Stewart, in a very witty and entertaining way, has shone a spotlight on an ongoing legal, social, and personal concern for many Australian girls, women and intersex people with disability and their families or carers. Involuntary sterilisation as a means of preventing pregnancy or cessation of menstruation – whether a hysterectomy, invasive form of contraception (such as an IUD), or medication – remains a legal option, despite the final report of the Disability Royal Commission, delivered in September 2023, emphasising the agency of women and girls in any and all decisions about their bodies, including medical intervention.

Involuntary (also referred to as forced or coerced) sterilisation has been addressed intermittently in parliament and media, but to no avail as far as legislative change. Forced sterilisation has been identified as an act of violence, a form of social control and a form of torture by the UN Special Rapporteur on Torture, and as a form of violence by the UN Committee on the Rights of the Child (CRC).

Kanolu and Warrabul woman, Tennille Lamb is the National Policy Director of the First Peoples Disability Network (FPDN). She tells LSJ, “Yes, we do hear stories that forced sterilisation is still occurring, despite the condemnation of the practice across various UN instruments, including CEDAW, CDRP, CROC  and CAT and OPCAT.”

These are the Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of Persons with Disabilities, Convention on the Rights of the Child, Convention Against Torture, and Optional Protocol to the Conventions on the Rights of a Child.

In 2013, the Women With Disabilities Australia (WWDA) submission to the Senate Inquiry into the involuntary or coerced sterilisation of people with disabilities in Australia stated, in part: “sterilisation in the absence of the free and informed consent of the individual concerned – including instances in which sterilisation has been authorised by a third party, without that individual’s consent – is an act of violence, a form of social control, and a clear and documented violation of the right to be free from torture. Forced sterilisation of girls and women with disabilities is internationally recognised as a harmful practice based on tradition, culture, religion or superstition. Perpetrators are seldom held accountable and women and girls with disabilities who have experienced this violent abuse of their rights are rarely, if ever, able to obtain justice. Successive Australian Governments have not acknowledged this pervasive practice, nor expressed regret, nor offered redress to the women and girls affected.”

Reproductive rights are protected

Numerous articles of the Convention on the Rights of Persons with Disabilities (CRPD) refer to the protection of people with disability’s reproductive rights. Article 17 on protecting the integrity of the person provides that “[e]very person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others”. Article 23 provides that “[p]ersons with disabilities, including children, retain their fertility on an equal basis with others”. Article 25 includes obligations that States Parties must: a) Provide persons with disabilities with the same range, quality and standard of free or affordable health care and programmes as provided to other persons, including in the area of sexual and reproductive health and population-based public health programs.

In specific regard to women and girls with disability, Article 6 provides that states “recognise that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms.”

Article 12 of the CRPD provides for equal recognition before the law. On this basis, women and girls with disability ought to be afforded the same rights and legal protections as people without disability regarding decisions to sterilise or suppress menstruation in any way, at any time.

In its General comment no.3 on women and girls with disability, the CRPD Committee stated that states should prohibit “all forms of forced sterilization, forced abortion and non-consensual birth control”. Additionally, multiple United Nations treaty bodies have raised concern over the issue of reproductive rights abuses of people with disability in Australia, particularly the involuntary sterilisation of women and girls with disability.

Australia’s legal stance

Under certain circumstances, involuntary sterilisation of people with disability is legal in Australia, providing vague enough conditions that it can be interpreted according to the court or tribunal. If the person cannot give consent, the procedure can only be performed if authorised by a court or tribunal with appropriate jurisdiction. Applications for sterilisation are usually made through the child welfare jurisdiction of the Federal Circuit and Family Court of Australia, parens patriae jurisdiction of state and territory superior courts, which is generally exercised in child care and protection or mental health-related matters, the guardianship and substitute decision-making jurisdiction of state and territory tribunals, where authorised by relevant law.

The legacy of the Secretary of the Department of Health and Community Services v JWB & SMB (Marion’s case) is that non-therapeutic use of involuntary sterilisation must be court authorised. Under Marion’s case, parents or guardians of a child can only authorise the sterilisation of the child in cases where it is therapeutic. The majority in Marion’s case drew a distinction between therapeutic sterilisation – procedures where permanent infertility is either ‘a by-product of surgery appropriately carried out to treat some malfunction or disease’ or an incidental result of surgery performed to cure a disease or correct some malfunction; and non-therapeutic sterilisation – procedures that fall outside therapeutic sterilisation, such as to manage menstruation or prevent the risk of conception. Marion’s case confirmed authorisations of this nature fall within the Family Court’s child welfare jurisdiction.

Following the merger of the Family Court of Australia and Federal Circuit Court of Australia in 2021, the Federal Circuit and Family Court of Australia (Family Court) Rules 2021 (Cth) set out the process that must be followed when an order authorising sterilisation is sought. Evidence in support of an application must satisfy the court that the “proposed medical procedure is in the best interests of the child”. The AHRC has often acted as an amicus curiae or impartial advisor in court in cases concerning the sterilisation of young women with disability.

In determining whether sterilisation of adults with disability who are found to lack the capacity to make decisions is necessary “to save the patient’s life” or “to prevent serious damage to the patient’s health”, the decision-making is up to guardianship authorities.  On 6 May 2009, the Australian Guardianship and Administration Council (AGAC) released its Protocol for Special Medical Procedures (Sterilisation) (AGAC protocol) to streamline the states and territories with a consistent regime. New South Wales has the highest threshold of any jurisdiction, where there is still variation. In NSW, sterilisation is categorised as ‘special treatment’, which includes “any treatment that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out”. The tribunal must not consent to special treatment unless it is satisfied the treatment is necessary “to save the patient’s life” or “to prevent serious damage to the patient’s health”.

Data on sterilisation procedures in Australia is very limited, and in the case of children whose sterilisation has been authorised by (often closed) courts, the outcome is not publicly available. The choice to publish decisions on adult sterilisations varies by jurisdiction, leading to patchy data and a lack of evidence when government is discussing or forming policy. In her evidence to the Royal Commission, Dr Linda Steele – Associate Professor at UTS Law Faculty – said the incomplete statistics presently available “is not giving us that depth of detail about what kinds of assumptions and ideas and knowledge around women and girls with disability are held by individual judges or enabled by psychological expertise or legal principles. We’re not getting that level of information and that’s really important to have…these decisions are allowing violence to occur, they are not protecting women and girls from violence.”

First Nations women and girls with disability especially vulnerable

Forced contraception, abortion and sterilisation has a long history for First Nations Australians, introduced by British settlers and enabled by sexual and reproductive healthcare providers since.

As Dr. Julia Hurst, lecturer in Aboriginal & Torres Strait Islander Historical and Philosophical Studies at the University of Melbourne, wrote for The Conversation in April last year, the 1967 referendum promising First Nations people would be counted resulted in “many white experts” deciding that measures to curb the First Nations population were required. This meant “covert government family-planning programs…ultimately to curb [women’s] fertility”. As Hurst notes: “University of New South Wales ethno-psychiatrist John Cawte described an Aboriginal ‘population bulge in some places and an explosion in others’. In his 1969 letter to the Courier Mail, professor of preventative medicine at the University of Queensland, John Francis, predicted an Aboriginal population of 360 million by 2200 if current birth rates continued.”

She reminds, “When First Nations women still make fertility decisions within a broader context of high rates of child removal and domestic abuse, we must ask what kind of ‘choice’ is available to them.”

In September 2019, an Australian delegation travelled to Geneva to address the UN committee reviewing Australia’s progress on the rights of people with disabilities. The group focused on the lack of support services in Australia for people with a disability in this country. Damian Griffiths, the CEO of the First Nations Disability Network, was a co-leader of the group, and from Geneva he told ABC Radio National that “we’re very anxious to talk to the committee about… the continuing forced sterilisation of women and girls with disability, which is an ongoing practice in Australia today despite that being condemned on a number of occasions by various U.N. agencies.”

Tennille Lamb of FPDN says, “Women and girls can be coerced by carers or partners. However, the issue of coercion extends to the medical system and instances where people are under the care of state guardianship.”

Last year, 22,908 Aboriginal and Torres Strait Islander children made up 41 per cent of the total out-of-home care population according to the Family Matters report produced by the peak group representing all Indigenous child care organisations in Australia, SNAICC.

Lamb says, “The power imbalance between First Nations people with disability and these large and powerful systems has a long and dark history.  Often the ability to self-advocate, or even the ability of parents, families and carers to advocate on behalf of women and girls is diminished in the face of these systems, not only because of cultural and language barriers, but also because of a lack of information about the rights of individuals, and what that practice means for individuals long-term.  Research has shown that even though sterilisation has been ‘agreed’ to by an individual, they were not fully informed or understood what was happening at the time and were deeply traumatised years later when they realised the full extent of what had been done to their bodies.”

She concludes, “The Royal Commission reminded us in its final report that the UN has defined involuntary sterilisation as a means of torture. There is no way to design a law that makes state-sanctioned forced sterilisation acceptable.  It is, in essence, state-sanctioned torture. As signatories to the Convention Against Torture and the Optional Protocol Against Torture, as well as other fundamental UN instruments, Australia should be making it illegal to force any individual to undergo forced sterilisation.”