WWDA Systemic Advocacy on the Unlawful Sterilisation of Minors with Disabilities – Responses from Other Stakeholders


In late 2006 and early 2007, Women With Disabilities Australia (WWDA) wrote to a wide range of stakeholders seeking support for WWDA’s call to the Federal and State/Territory Governments to develop universal legislation which prohibits sterilisation of children except in those circumstances which amount to those that are a serious threat to health or life. Below are copies of responses to WWDA Correspondence from a range of stakeholders including Commissioners for Children; Law Societies; Disability organisations; individuals; legal organisations; women’s organisations; and so on.


 

Commissioner for Children and Young People and Child Guardian (Queensland) – Elizabeth Fraser

Dear Ms Parkinson,

Thank you for your letter dated 29 January 2007 seeking support for the prohibition of the sterilisation of children with intellectual disabilities, which included a response from the United Nations Children’s Fund (UNICEF) on this matter.

As stated in previous advice to your organisation, the Commission for Children and Young People and Child Guardian does not support development of the Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006 to supersede existing provisions in the Queensland Guardianship and Administration Act 2000.

In my capacity as Queensland’s Commissioner for Children and Young People and Child Guardian, I believe that legislation must seek to ensure that sterilisation of children and young people with an intellectual disabilitiy only occurs when fertility poses a threat to the health or wellbeing or life of the child or young person and when sterilisation is deemed by an independent tribunal to be in the child’s best interests. It is my considered opinion that existing provisions in Queensland legislation contain sufficient and appropriate safeguards for this purpose.

Please do not hesitate to contact Lone Keast, Manager Policy, Strategic Policy and Research unit (ph: 32475509; e-mail: Lone.Keast@ccypcg.qld.gov.au) should any aspect of this advice require clarification.

Yours sincerely
Elizabeth Fraser
February 2007


Commissioner for Children (Tasmania) – Dr Sue Jenkins

Dear Ms Parkinson,

Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006

Thank you for your letters dated 2 November 2006 and 29 january 2007. I apologise for the delay in responding to you.

The Department of Justice provided a copy of the draft model Bill for the regulation of sterilisation of children with intellectual disabilities to my predecessor, Mr David Fanning. Mr Fanning provided comment to the Director of Legislation Development and Review in the Department of Justice, suggesting further safeguards and protections for children in the Bill and that paramount consideration should be the best interests of the child.

I understand your concerns regarding the draft model Bill and I commend your commitment to these issues.

There are a number of human rights, child health and child protection issues that require careful balancing when considering the sterilisation of intellectually disabled minors, including the protection of children from unauthorised sterilisations which I understand to be one of the objectives of the Bill. It is my understanding that should the draft model Bill be agreed upon by the Standing Committee of Attorneys-General (SCAG) it will then be possible for States and Territories to adopt the provisions of the Bill in part or in whole.

I would hope that further consultation takes place at this later stage to ensure that the Bill suitably protects children from unauthorised and unnecessary sterilisation, as well as improving current processes for the approval of such procedures.

Thank you for writing to me on this matter.

Yours sincerely
Dr Sue Jenkins
Interim Commissioner for Childrem
15 February 2007


Commissioner for Children and Young People (New South Wales) – Gillian Calvert

Dear Ms Parkinson,

I am writing regarding your concerns about the proposed draft model bill to regulate the sterilisation of children with an intellectual disability.

I agree with your organisation that sterilisation should only be authorised when there is a threat to the child’s life or heath, and only after the child’s views have been sought and other options have been attempted or considered. It may also be appropriate to establish a lower age limit below which applications cannot be made for sterilisation.

I advised the NSW Government of my views when it sought my comments on the model Bill. If you require any further information, please contact Mr Stephen Robertson, the Commissioner’s Director, Policy, on 92867213 or at stephen.robertson@kids.nsw.gov.au

Yours sincerely
Gillian Calvert
Commissioner
15 November 2006


New South Wales Council for Intellectual Disability

Dear WWDA,

It is great that you are taking such a major role on this issue. We have made a submission on the proposed Bill. Like you, we see the Bill as very ill-conceived. It should not allow sterilisation of a child with a disability unless it is approved by an appropriate Tribunal as necessary to prevent serious damage to the child’s health.

Regards
Jim Simpson
New South Wales Council for Intellectual Disability
17 November 2006


Villamanta Disability Rights Legal Service Inc. – Victoria

Dear Carolyn & Annie,

Villamanta Disability Rights Legal Service Inc. is in agreement with the position of WWDA on the issue of sterilisation of children with intellectual disabilities. You have our support on this issue.

Regards
Deidre Griffiths
Principal Solicitor & Executive Officer
Villamanta Disability Rights Legal Service Inc.
November 14, 2006


People With Disability Australia (PWDA)

Dear Annie & Carolyn,

I am writing to assure you that PWD supports your position in relation to the draft model Bill released for discussion. We are currently finalising our submission and expect to have it submitted by cob 7 November. We are also considering next steps towards a campaign to ensure that the direction taken by the draft exposure Bill is not adopted and that legislation is drafted that protects the human rights of all children from non-therpaeutic sterilisation.

Regards
Therese Sands
Senior Advocate
People With Disability Australia (PWDA)
3 November 2006


National Council of Single Mothers & Their Children (NCSMC)

Dear Carolyn,

The National Council of Single Mothers & Their Children (NCSMC) is in full support of WWDA’s position.

Regards
Dr. Elspeth McInnes
3 November 2006


Victorian Advocacy League for Individuals with Disability Inc. (VALID)

Dear Carolyn,

Thank you for inviting VALID to support the WWDA Submission to the Australian Government regarding the sterilisation of minors with intellectual disability. Whilst VALID has not been able to give this matter the serious analysis it clearly requires, we are highly appreciative of the excellent work done by your organisation and offer our strong support. In particular, we support your recommendation that:

the Federal Government develop universal legislation which prohibits sterilisation of children except in those circumstances which amount to those that are a serious threat to health or life. In the case of adults, WWDA also strongly recommends that sterilisation be prohibited in the absence of the informed consent of the individual concerned, except in those circumstances where there is a serious threat to health or life.

Regards
Kevin Stone
VALID EO
6 November 2006


Law Institute of Victoria

Dear Ms Parkinson,

Response to submission received from WWDA

Thank you for your letter of 2 November 2006 regarding the Standing Committee of Attorneys-General’s inquiry in the Sterilisation of minors with a decision making disability. The Law Institute of Victoria (LIV) has reviewed the submission provided by you regarding the sterilisation of minors.

The LIV position is that we agree that sterilisation of any child should only be available for a therapeutic purpose. In this sense, we agree that the sterilisation of any child for a purpose other than a therapeutic one is wrong and should be outlawed.

However, the LIV is concerned that to simply outlaw a procedure would not properly protect people who have a disability from sterilisations which are proposed as therapeutic but which may be performed with other intentions. It is for this reason that the LIV thinks it is necessary to create a framework to prevent this. In the model Bill there is strict guidance as to what constitutes a permitted sterilisation on therapeutic grounds. The LIV has recommended that there be education of medical practitioners regarding this.

The LIV agrees with WWDA that there should not be any other grounds. However, the High Court decision in re Marion left the door open for justification of sterilisation on the grounds that the sterilization is “necessary to enable the child to lead a life in keeping with the child’s needs and capacities”. The LIV understands that the SCAG does no seek to overturn the decision of re Marion. The LIV has sought, in its recent submission, to prevent any sterilisation on this ground.

The LIV has prepared two submissions on this issue which I attach for your information. Should you require any further information or would like to discuss the matter further, please contact Alison Brooks on 96079381 or by email at abrooks@liv.asn.au.

Yours sincerely
Catherine Gale
President
13 December 2006


The Victorian Bar

Dear Ms Parkinson,

I am acknowledging your letter dated 2 November 2006 addressed to the Chairman, Michael Shand QC, in which you sought the Bar’s support to prohibit sterilisation of minors with a decision-making disability.

I thank you for bringing this matter to the Bar’s attention.

Since you contacted the Bar, I have received formal notification from the Victorian Department of Justice of the draft model provisions which were released by the Standing Committee of Attorneys-General and the further Issues paper.

In order to reach a policy position on this issue, the Bar Council has established a small working group to consider the model provisions, the Issues Paper and your organisation’s submission of May 2004. It is anticipated that the Bar will finalise its position and response by mid February 2007.

I will be in contact with you again the new year.

Yours sincerely
Christine Harvey
Chief Executive Officer
12 December 2006


Advocacy for Inclusion – Australian Capital Territory

David Snell
Legislation and Policy Branch
Department of Justice and Community Safety
GPO Box 158, Canberra ACT 2601

Dear Mr Snell

I am writing in relation to the Australian Government’s recently released Draft Legislation on the Sterilisation of Children with Intellectual Disabilities and Standing Committee of Attorneys General, Issues Paper, Sterilisation of Intellectually Disabled Minors, September 2006.

Advocacy for Inclusion [1] does not support the draft Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006. We believe that the sterilisation of children who have a disability is an unnecessary act and should not be undertaken unless there is a proven life-threatening medical condition.

Advocacy for Inclusion supports the Women With Disabilities Australia (WWDA) response to the SCAG Issues Paper (a copy of WWDA’s 2004 submission is attached). WWDA’s response clearly states that sterilisation is an act of unnecessary and dehumanising violence which denies a woman’s basic human right to bodily integrity and to bear children and which results in adverse life-long physical and mental health effects. WWDA stressed that sterilisation can be justified only in circumstances where it is necessary to save life or preserve the health of the individual.

It is our current understanding that the NSW Government is the only State/Territory Government that has expressed support of WWDA’s position. In 2004, the NSW Attorney General Bob Debus formally presented its position to the Standing Committee of Attorneys-General (SCAG):

“…..The [NSW] Government supports the submission from Women With Disabilities Australia that sterilisation of minors with a decision-making disability should be prohibited except where there is a threat to life or health. Sterilisation is a matter for adulthood and should only be carried out in children for immediately needed therapeutic purposes…NSW will not adopt any uniform legislation unless the Government is sure that sterilisation is prohibited except where there is a serious and immediate threat to health or life.” (Hon Bob Debus, NSW Attorney General, 2004).

In line with the WWDA and NSW Government’s position, Advocacy for Inclusion will only support any legislation if it prohibits the sterilisation of children who have an intellectual disability in circumstances other than where there is a threat to life or health.

Yours sincerely
Liz Blakey
Executive Officer
Advocacy for Inclusion
14 November 2006


South Australian Bar Association

Dear Ms Parkinson,

I have to hand your letter to Mr Dick Whitington QC dated 2 November 2006, and take the liberty of responding thereto.

I recall having read somewhere, that Sir Gerard Brennan has said that Marion’s case was one of the most difficult judgments he had to write during his service as a judge. The issues you raise are clearly very difficult, complex and important ones. One hopes that you are able to generate a political debate on the topic.

The matters raised in your letter were considered by three members of the executive of the SA Bar (being Dick Whitington QC, Malcom Blue QC and myself), and unfortunately it was concluded that the SA Bar should not provide the support you seek. We certainly do not oppose the position you advocate. Rather, the SA Bar considers the issue primarily to a political one, rather than a legal one. Our members would have diverse views on the topic, and while the SA Bar would generally advocate that governments should adhere to human rights norms, as far as we are aware the international law position has no crystallized. As a result, we perceive the issue to be political in nature. The SA Bar does not hold an official view on the issue.

Having said this, it may be that individual members would support your position, and, should you wish to write to barristers’direct, the Chambers addresses are available on the SA Bar website: www.sabar.org.au.

Yours sincerely
Henry Heuzenroeder
Hon Secretary
13 November 2006


Australian Federation of Disability Organisations (AFDO)

The Hon Phillip Ruddock MP
Attorney-General
via Email: ag@ag.gov.au

Dear Attorney-General,

The Australian Federation of Disability Organisations (AFDO) is the national peak body representing organisations of people with disability. Women with Disabilities Australia (WWDA) is a founding member of AFDO, and a committed advocate for the rights of women with a disability.

The current draft legislation in Western Australia being developed to regulate the sterilisation of women and girls with a disability raises serious concerns. Sterilisation without the consent of the individual is an issue of human rights and strikes to the core of how people with disabilities as a whole are viewed by our society.

AFDO fully supports WWDA in its assertion that the correct and proper way of ‘protecting children with intellectual disabilities from unauthorised sterilisation procedures’, as stated in the proposed Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006, is for the Australian Government to act immediately to ban all sterilisations of children under the age of 18 years, unless the sterilisation is being performed as a life saving measure or medical emergency.

Sterilisation of women and girls with a disability is an act of unnecessary violence that denies a woman’s basic human right to bodily integrity and to bear children. It is also a procedure, which results in documented adverse life-long physical and mental health effects. AFDO supports WWDA in its view that sterilisation can be justified only in circumstances where it is necessary to save life or preserve the health of the individual.

AFDO endorses the recommendation made by Women With Disabilities Australia (WWDA) to the Australian Government and the Standing Committee of Attorneys-General (SCAG) that:

the Federal Government develop universal legislation which prohibits sterilisation of children except in those circumstances which amount to those that are a serious threat to health or life. In the case of adults, WWDA also strongly recommends that sterilisation be prohibited in the absence of the informed consent of the individual concerned, except in those circumstances where there is a serious threat to health or life.

We hope that this issue can be resolved on a national level by the Standing Committee of Attorneys-General to ensure that the human rights of women with disabilities are upheld.

Yours sincerely
Maryanne Diamond
Chief Executive Officer
14 November 2006


UNICEF Australia

Dear Ms Parkinson,

In response to your correspondence with Elizabeth Gibbons (UNICEF New York) regarding the sterilization of disabled children, UNICEF Australia has written to the Standing Committee of Attorneys-General to voice our opinion on the draft legislation. Please find attached a copy of this letter for your information and records.

Kind Regards
Felicity Stafford
UNICEF Australia
2 March 2007

To the Hon Bob Debus MP,

I am writing in relation to the recently released Draft Legislation on the Sterilisation of Children with Intellectual Disabilities.

UNICEF strongly supported the drafting of the Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. Throughout the drafting process, UNICEF submitted several statements to the Ad Hoc Committtee (June 2003, 2004 and 2005) advocating for the need to incorporate specific provisions with the aim of strengthening the rights of children with disabilities in the Convention. UNICEF, together with the International Disability Caucus, argued for the inclusion of an article on protection of children from sterilisation on the basis of their disability. While the final text of the Convention does not explicitly refer to sterilisation, several articles amount to a prohibition of such practice, particularly Article 23 (1) which calls upon States parties to ensure that “persons with disabilities, including children shall retain their fertility on an equal basis with others”.

As you may know, UNICEF Australia is “guided by the Convention on the Rights of the Child (CRC) and strives to establish children’s rights as enduring ethical principles and international standards of behaviour towards children”. UNICEF Australia has consistently promoted the position that children must live free of discrimination of any kind. Children with disabilities, like all children, should enjoy all the rights set forth in the CRC. In this context, UNICEF Australia believes that measures, including discriminatory laws which fail to consider children with disabilities on an equal basis with other children represent a profound violation of the Convention.

It is our view that the principle of the best interests of the child (Article 3 of the CRC) is the test provided by the CRC against which governments can measure their actions in favour of children. This principle requires that in all actions concerning children, the best interests of the child shall be a primary consideration. In addition, UNICEF believes that all children should be given the opportunity to participate in decisions affecting them. This is especially true for children living in situations that hamper their ability to exercise their rights. Children with disabilities, like any other children, must be treated as human beings with human rights. They have the right to express tueir views in matters concerning them, as well as having their views given due consideration (Article 12 of the CRC). UNICEF Australia views children with intellectual disabilities as having the capacity to contribute to decision-making. We deem it crucial to challenge the lack of belief in children with restricted capacities to participate in the community. Participation should be considered as a central part of the learning process, enabling those with disabilities to make decisions, take responsibility for their decisions, as well as to develop self-esteem and confidence. Denying children with disabilities the right to participate in decision-making, is denying their status as subjects of rights.

UNICEF Australia strongly believes that children with disabilities have the right to be protected from all forms of violence, including sexual exploitation and abuse. Children with disabilities are indeed particularly vulnerable to violence and abuse. However, governments should avoid supplanting the protection to which children with disabilities have a right, by measures that are likely to expose them to more violence. Indeed the sterilisation of children with disabilities has no other effect than ensuring [and reassuring eventual perpetrators] that a child’s sexual activity will not result in pregnancy. For children, this measure does not mitigate or prevent the emotional trauma and physical harm, including sexually transmitted diseases that they are likely to experience due to violence.

UNICEF Australia believes that measures which aim at protecting children with disabilities should in tueir essence be respectful of children’s rights and dignity as human beings. Preventive approaches aimed at ensuring realisation of children’s rights have proven successful in diminishing chances of sexual exploitation and abuse of children and have reduced the likelihood of their being exposes to sexually transmitted diseases. These measures include and promote access to support structures and services, as well as to information and education; and other healh care programmes.

UNICEF Australia feels compelled to remind the Australian Government of its obligation as a signatory to the CRC to ensure the rights of all children, including children with disabilities, and to refrain from enacting legislation that raises concerns of compatibility with the object and purpose of the Convention.

Kind Regards,
Carolyn Hardy
Chief Executive
United Nations Children’s Fund (UNICEF) Australia
Level 7, 171 Clarence Street
Sydney NSW 2000
24 January 2007


Law Society of Western Australia

Dear President,

I refer to your letters dated November 2006 and 29 January 2007 re the proposed Children with Intellectual Disabilities (Regulation of Sterilisation) Bill 2006. This matter is before our Equal Opportunity Committee, which has advised me that it is unable to locate a copy of the Bill.

I will continue to search the Internet, but in the meantime, can your organisation help me plesae to locate the bill, or if not, relevant background information that would help our Committee consider the issues? Please note I already have access to the information already provided via link at your website.

For your information, in 2004, the Society commented at State level on this issue. I am sure the Society will provide you with a copy of that comment when it has finalised its formal response to your leter of 29 January 2007.

In the meantime, any information you can provide to help in our search for the Commonwealth legislation would be greatly appreciated.

Regards
Megan Jessup
Executive Officer
6 February 2007


United Nations Division for the Advancement of Women

Dear Ms Annie Parkinson,

This is to acknowledge receipt of your letter of 2 November 2006 that was addressed to the Committee on the Elimination of Discrimination Against Women and the Division for the Advancement of Women and forwarded to me for reply.

Your letter will be brought to the attention of the Chairperson at the next session of the Committee on the Elimination of Discrimination Against Women which will be held from 15 January to 2 February 2007.

Yours sincerely
Christine Brautigam
Chief
Women’s Rights Section
Division for the Advancement of Women
United Nations
New York New York
7 December 2006


Darren Ball

Dear Carolyn at WWDA,

My comment (opinionated as it is), as a caring professional, member of a family with people with a disability and as a human being would be:

“I fail to understand why anyone could not see what is wrong with this practice! A basic human right is being contravened. Surely this practice is a type of abuse based in control and paranoia which is seeking to absolve society from the responsibility of properly caring for and advocating for, women with a disability.

As a man who cannot possibly understand the significance reproductive health and well being has for women, I find it a very difficult discussion to even be a part of, let alone contribute to the decision-making around this practice. There are some conversations men should not be part of, in my opinion. When I can become pregnant, then I will have the right to join the debate on this and other women’s reproductive issues. A cliche, but so true.

I find it sad that in 2006 this conversation even has to be had. Surely today there are options that are not so extreme or degrading to both the person being sterilised or the person imposing that decision. Does the term “least restrictive option” take a holiday around this topic?

Being a parent doesn’t mean I can cut off my child’s arm, so why should reproductive organs be viewed any differently? The liberation of women should not be limited to those women who have a non-disabled voice.”

Yes, I feel quite strongly about this.

Darren Ball
Special Education Teacher and Appalled Australian
21 November 2006


Australian Federation of University Women (AFUW)

Dear Carolyn,

As promised, I’ve consulted AFUW Council members about the possibility of supporting your recommendation to the Australian Government and the Standing Committee of Attorneys-General (SCAG) that:

the Federal Government develop universal legislation which prohibits sterilisation of children except in those circumstances which amount to those that are a serious threat to health or life. In the case of adults, WWDA also strongly recommends that sterilisation be prohibited in the absence of the informed consent of the individual concerned, except in those circumstances where there is a serious threat to health or life.

In the absence of existing policy on this matter we have not been able to reach agreement on supporting the statement as it stands.One result of the request is to make us aware that many of us are not well-informed on the issues, and also that there are passionate (and anguished) opinions about them. We do see this as something that our members need to discuss.

There is no doubt that all Council members take very seriously the human rights issues involved and would look to see any legislation providing only the most strictly limited causes justifying sterilisation. Whether these can be adequately covered by the phrase serious threat to health or life was a source of dispute. We didn’t feel we knew enough about the kind of cases that might be included or excluded under such a proviso.

The discussion took place on the assumption that sterilisation under the proposed legislation would not be available merely upon the request of a parent or guardian or even on the recommendation of a medical professional, but only with the sanction of a court. In this respect we would like to know whether, in a less than ideal world, WWDA supports the intention in the proposed legislation to place the matter entirely under the Family Court?

A matter of concern to members was whether children and minors (i.e. those under 18) should be treated as the same category. No one supported the idea of sterilisation of pre-pubertal children: it was in the area of adolescence, with its possibilities of sexual activity resulting in disease or unwanted pregnancies that opinions diverged. Even so, nobody would support sterilisation until every other form of management of problems had been tried and failed.

Questions were also raised as to whether those with very severe mental impairment as adults were capable of ‘�nformed consent’.

If you would like to provide references to material where the issues are argued out in detail, I’d be happy to circulate them among the members. Please keep us in your information loop on this and other issues.

Yours Sincerely,
Jennifer Strauss
President, AFUW
14 November 2006


Margaret Bayly

Dear Ministers/Attorney-Generals

I sincerely support in all reality the stance and position that WWDA have produced in this submission.

To sterilise a woman against her permission –
To sterilise because it does not sit well with you or because of community misunderstanding –
To sterilise because of economics or for unfounded or un-medicalised reasons

Are UNACCEPTABLE.

As an Australian citizen I believe that your reasons are self-serving and not humanity serving. We are living in the 21st century not the 19th century – we are supposed to be beyond the ignorance and fear of the 18th/19th/20th centuries and what went before it. No longer do we always ‘beget’ in our own image. No longer do we have family ‘doomsday scenarios’. The ‘human genetic’ system has been cracked and new discoveries have been brought forward at a seriously rapid rate.

Termination of pregnancy and sterilisation just because you think it is a ‘cool idea’ to stop the ‘poor unfortunates’ from breeding, is NOT ACCEPTED anymore. The idea of ‘we will let the poor unfortunates have their fun because they can’t do any harm’ is also NOT ACCEPTED anymore.

You have to show that you are more open to the communities, times and peoples of Australia.

Margaret Bayly
6 November 2006