Sterilisation for Women With Disabilities? A WA Draft Bill Is “Appalling”

OPINION: The non-therapeutic sterilisation of women with disabilities? Surely it’s not still happening – not in modern day Australia asks the President of the Victorian Disability Services Board and disability campaigner, Tricia Malowney.

“Forced sterilization is a method of medical control of a woman’s fertility without the consent of a woman. Essentially involving the battery of a woman—violating her physical integrity and security, forced sterilization constitutes violence against women.” [1]

On International Women’s day in 2012 I was advised that the Draft Mental Health Bill is on the table for discussion in Western Australia. The Bill is appalling. If it is passed, it means that women can be sterilised as long as a psychiatrist determines that there is informed consent.

It also allows that a person’s enduring guardian can consent to the sterilisation and that they only need to report following the event. In effect, we know that that means that women with disabilities and children as young as 12 will be able to be more easily sterilised.

As Frank Hall-Bentick says – “Since when can they classify sterilisation as a treatment for ANYTHING, let alone a mental illness.”

We know that sterilisation used to be a standard procedure forced on women with disabilities in Australia. The Queensland Mental Hygiene Act 1938 and the Backward Persons Act 1937 were passed after debate in Parliament which included “… Arthur Moore, a member and former leader of the Country Party, describ(ing) backward persons as 'a menace to the community, particularly in the propagation of their species' and argued that the only solution 'in the interests of the community and in the interests of these mentally affected people' was sterilisation…”[2]

It makes me sick to think of it. And yet here we are in 2012.

When I first heard about it, I thought there may have been an overreaction – surely no one would be proposing sterilisation under a mental health bill – but here it is this is what they are proposing:

Division 3, Sterilisation procedure

208 Sterilisation procedure: meaning of
(1) A sterilisation procedure is the provision of medical or surgical treatment that is intended to make a person, or to ensure a 17 person is, permanently infertile.

209. Requirements for sterilisation procedure
A person must not perform a sterilisation procedure on a person who has a mental illness unless —
(a) if the person is a child who does not have sufficient maturity or understanding to make reasonable decisions about matters relating to himself or herself — the Family Court has authorised the sterilisation procedure to be performed; or
(b) if the person —
(i) is a child who has sufficient maturity and understanding to make reasonable decisions about matters relating to himself or herself; or
(ii) has reached 18 years of age and has the capacity required by section 12 to give informed consent to the sterilisation procedure being performed, the person has given informed consent to it being performed; or
(c) if the person has reached 18 years of age but does not have the capacity required by section 12 to give informed consent to the sterilisation procedure being performed — the person’s enduring guardian or guardian has given consent in accordance with the Guardianship Act Part 5 Division 3 to it being performed.

210. Chief Psychiatrist and Mentally Impaired Accused Review Board: report

As soon as practicable after a sterilisation procedure is performed on a person who has a mental illness, the treating psychiatrist must report to —
(a) the Chief Psychiatrist; and
(b) if the person is a mentally impaired accused, the Mentally Impaired Accused Review Board,
that the procedure was performed.

Nowhere in the Bill can I find any reference to when this should occur – are we going back to past practices – is it to cure hysteria or wandering womb – oh no sorry – that was not sterilisation, orgasms was used to cure that, which was of course in women as a cure.

Greek medicine cast man as the bringer of sanity and health to the biologically defective, subservient woman[3] so perhaps the WA Government sees this as another tool in the subjugation of women who need to be controlled.

I have friends who were sterilised in Australia in the 1950’s and 1960’s because they had a disability – in stable relationships, they are still mourning the loss of the children they might have had. I have other friends with disabilities whose parents fought to ensure that their daughters were not sterilised – who then had to see them in their fight for the right to have a family. These women who have successfully raised their children to adulthood as fully functioning members of society, who have achieved much more than the pundits of the time believed was possible.

Although regulated, anecdotal evidence tells us that the non therapeutic sterilisation of women with disabilities occurs at far greater levels than those officially sanctioned. The evidence is anecdotal because “There is a lack of data on their forced and coerced sterilization and abortion because very often medical professionals do not keep records of the procedures”[4]

The legal framework regulating sterilisation of children in Australia was set out by the High Court in Marion's Case in 1992. It sought to ensure heightened accountability in decision making in an area where children are at significant risk of grave abuse of their fundamental human right to bodily integrity. It held that:
court or tribunal authority is required before any child can lawfully be sterilised unless the sterilisation occurs as a by-product of surgery appropriately carried out to treat some malfunction or disease; and
authorisation may be given only if sterilisation is in the child's best interests after alternative and less invasive procedures have all failed or it is certain that no other procedure or treatment will work.[5]

Article 23 of the Convention on the Rights of Persons with Disabilities – to which Australia is a signatory – states that:

1 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:
(b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;
(c) Persons with disabilities, including children, retain their fertility on an equal basis with others.[6]

How does the WA Bill ensure that Australia is meeting its obligations not only legally under national and international law – but morally – have we learned nothing from the Stolen Generation?

“Women are often provided inadequate time and information to consent to sterilization procedures, or are never told or discover later that they have been sterilized. Policies and legislation sanctioning non-consensual treatments… including sterilizations…violate the right to physical and mental integrity and may constitute torture and ill-treatment.”[7]

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[1] UN Human Rights Council, Violence against Women (Addendum): Policies and Practices that Impact Women’s Reproductive Rights and Contribute To, Cause or Constitute Violence against Women, Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Radhika Coomaraswamy, E/CN.4/1999/68/Add.4, January 21, 1999, para. 51, http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/4cad275a8b5509ed8025673800503f9d?Opendocument
[2]Wilson, E, A `menace to the community': mental defectives in Queensland mental health legislation, 1938, http://findarticles.com/p/articles/mi_hb4817/is_1_89/ai_n29015077 Journal of the Royal Australian Historical Society / June, 2003
[3] http://www.hsl.virginia.edu/historical/artifacts/antiqua/gynecology.cfm
[4] http://www.soros.org/initiatives/health/focus/law/articles_publications/publications/against-her-will-20111004/against-her-will-20111003.pdf
[5] http://www.hreoc.gov.au/disability_rights/hr_disab/sterilization/sterilization.html
[6] Convention on Rights of Persons with Disabilities.
[7] UN Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, A/64/272, August 10, 2009, para. 55, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/450/87/PDF/N0945087.pdf?OpenElement