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July 17th, 2013 
Peter Nolan
Updated
A Senate inquiry into forcibly sterilising people with disabilities has recommended the procedure be illegal without court approval, or when the person has the ability to give consent.
The Senate Standing Committees on Community Affairs today tabled its report, which makes 28 recommendations ranging from strengthening laws to better education for medical professionals.
One recommendation calls for states and territories to make it a criminal offence to take people with disabilities overseas to be sterilised.
But the report stops short of calls from disability and human rights advocates to have forced sterilisation banned outright.
Committee member, Liberal Senator Sue Boyce, whose daughter has a disability, said she expected some people may be unhappy about that.
“There will be some… who will be disappointed we have not recommended outright banning of sterilisation of people with disabilities in all circumstances, except life threatening ones,” she said.
“The very, very constrained way of doing this, of allowing sterilisation, was a better option.”
The committee’s chair, Greens Senator Rachel Siewert, said the recommendations focussed on the person with a disability.
To make a clear ban outright (on sterilisation), you also ban people’s rights.
“To make a clear ban outright (on sterilisation), you also ban people’s rights,” she said.
One recommendation said there should be a ban on forced sterilisation in cases where the person has the ability to give consent.
Another recommended that irreversible sterilisation should be banned if the person could one day develop the future capacity to consent.
The committee also called for better support programs for sex education, family planning and parenting skills for the disability sector.
It said it “abhors the suggestion that sterilisation ever be used as a means of managing the pregnancy risks associated with sexual abuse and strongly recommends that this must never be a factor in approval of sterilisation”.
‘Checks and safeguards are not enough’
The family court or a guardianship tribunal is required to authorise the forced sterilisation of people with disabilities.
But the Human Rights Commission (HRC) says families are increasingly getting around that process.
“Either by a different Medicare number being used, by a person not being recorded by the health system as a person with a disability, or by people going overseas,” said Disability Commissioner Graeme Innes.
The checks and safeguards are not currently enough and more of these procedures are occurring than we think.
The HRC is one group that is pushing for legislation to criminalise forced sterilisations, except in life-threatening circumstances.
“The checks and safeguards are not currently enough and more of these procedures are occurring than we think,” Mr Innes said.
“One sterilisation, one forced or coerced, is one too many.”
The committee also recommended that an independent legal advocate for the person with a disability is appointed to each sterilisation case to go before the courts and that the government looks at more funding for legal aid.
“It is very clear there is a lack of understanding of people’s rights – of the needs of people with disabilities,” Senator Siewert said.
“There is a lack of understanding in the legal system, in the medical system and in the support system.”
“People are not getting adequate support for supported decision making.”
Numbers of forced sterilisations unclear
The Senate inquiry heard that data collection about forced sterilisation is patchy and exact numbers are not known.
But the senators were told most of the applications are for adults, not children.
It found New South Wales appeared to be the only state that regularly rejected applications for sterilisation, while WA had fewer applications than other jurisdictions.
In its submission to the inquiry, the Australian Guardianship and Administration Council reported “a very low incidence of applications for consent to sterilisations”.
The council reported only one or two applications in each jurisdiction each year.
It is a similar story in the Family Court’s submission.
Chief Justice Diana Bryant wrote that “applications to sterilise children and young people with disabilities, and particularity applications to perform hysterectomies, are increasingly rare”.
She said the database shows a total of 27 judgements, the bulk of them in the 1990s.
There was only one application in 2004 and one in 2010.
The Federal Government said it was unaware of any recent evidence to indicate forced sterilisations are occurring with court or tribunal authorisation.
The inquiry heard reports of parents and carers taking their daughters to India, Thailand and New Zealand to be sterilised.
There are no Commonwealth laws against taking a child with intellectual disabilities overseas for the purpose of sterilisation.
Amanda’s story
Amanda White has an intellectual disability and is the mother of nine-year-old twin girls, Elizabeth and Lilly.
“It doesn’t affect my parenting… anyone should have the right to have babies, anytime,” she said.
Her foster mother and disability advocate Doctor Margaret Spencer said she has never questioned her daughter’s right to have a child.
“In terms of her right to have a child that was not something I ever felt was my position to take away,” she said.
She said sterilisation laws should be the same for all people, regardless of if they have a disability or not.
“Sterilisation should only be a last resort because of either a health issue, or for that person’s wellbeing,” Dr Spencer said.
Ms White was placed in foster care as a child because her mother was also intellectually disabled. She has similar concerns about her own daughters.
“I get worried because we were taken away from our parents when we were young, aged five and six, my sister and me,” she said.
Ms White believes everyone has the right to have a baby.
“It doesn’t affect my parenting,” she said. “I wouldn’t have it any different than what I’ve got it now. I love being a mum.”
Topics:
mental-health,
health-policy,
family-and-children,
disabilities,
laws,
australia
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Source Article from http://www.abc.net.au/news/2013-07-17/senate-inquiry-calls-for-court-approval-for-forced-sterilisation/4826728
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