We welcome the first Senate report on the involuntary sterilisation of people with disabilities

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The Senate’s Community Affairs Reference Committee has just published its first document on involuntary or coerced sterilisation. A second report, focusing on intersex people, will be published in a couple of weeks (update: likely in late September).

We welcome the report, its focus on the human rights of people subjected to non-consensual sterilisation, and its recommendations to outlaw such surgeries on people with disabilities. There are numerous recommendations which could equally be applied to intersex people. We welcome those recommendations.

We welcome language in the report which refers to the ambiguities involved in defining some surgeries as therapeutic – and we note that the Senate will return to this issue in respect of intersex people.

We also welcome the Committee’s criticism of the “best interests of the child” test, and its replacement with a “best protection of rights” test, see recommendation 11. This is an issue that we addressed directly at the hearing on 28 March. The Committee notes that an individual’s capacity to consent is not static, but changes over time.

We need to reflect further on some of the recommendations, in particular in respect of recommendations regarding the role of the Family Courts.

We warmly thank the Committee, staff and contributors to the Inquiry for this report.

Selected recommendations

Recommendation 5
2.127 The committee 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.

Recommendation 6
4.43 The committee recommends that, for a person with a disability who has the capacity to consent, or to consent where provided with appropriate decision- making support, sterilisation should be banned unless undertaken with that consent.

Recommendation 7
4.44 The committee recommends that, for a person with a disability for whom it may reasonably be held that they may develop the future capacity to consent, irreversible sterilisation should be banned until either the capacity to consent exists, or it becomes reasonably held that the capacity to consent will never develop.

Recommendation 10
5.117 The committee recommends that each Australian jurisdiction use the same definition of capacity, to ensure that a person’s rights to autonomy and bodily integrity do not vary according to, and are not dependent on, the jurisdiction in which they live.

Recommendation 11
5.126 The committee recommends that all jurisdictions adopt in law a uniform ‘best protection of rights’ test, replacing current ‘best interests’ tests, that makes explicit reference to the protection of the individual’s rights; and the maintenance of future options and choices.

Recommendation 24
6.55 The committee recommends that the Standing Council on Law and Justice obtain information about the frequency and nature of ‘therapeutic’ sterilisation cases being conducted, and compare the circumstances of those cases with ‘non- therapeutic’ cases that have been authorised by courts or tribunals.

Download the Inquiry report on sterilisation and people with disabilities

Recent developments

OII Australia submissions

AISSGA and National LGBTI Health Alliance submissions

Clinician submissions

Documents tabled by OII Australia

More information