The 2009 Costello Lecture, by Diana Bryant, Chief Justice of the Family Court of Australia

The Hon. Diana Bryant, Chief Justice, Family Court of Australia, gave the Costello Lecture, on Thursday 23 July 2009, talking about medical treatment on children.

2009 COSTELLO LECTURE Thursday 23 July 2009

Diana Bryant, Chief Justice, Family Court of Australia


I am pleased to be delivering this year’s Costello lecture in a fertile human rights environment. The Government’s consultation process continues apace and the media reports of the submissions made to the Human Rights Committee suggest, unsurprisingly , that we as a society remain deeply divided about whether or not to follow our common law neighbours in enacting a charter of rights. Tonight I will be discussing a sub-set of that larger debate – the right of children and young people to consent (or refuse) medical treatment.

It is a complex and contentious area. Should young people have access to contraceptive advice without their parents being informed? Can teenagers legally volunteer to act as research subjects? Is it appropriate for a court to order a devout 16 year old Jehovah’s Witness to have a blood transfusion against his express wishes? It is ever appropriate to permit a teenager with transsexualism to undertake sex affirmation surgery? …

… That case concerned a baby who was 8 months old and who suffered from Infantile Osteopetrosis. Without a bone marrow transplant he was likely to die and the bone marrow transplant was his only potential cure. His cousin was just a little older than him, being one year old. The mother of the baby is the sister of the father of the one year old and two children were therefore cousins. Their parents were not only siblings but were very close by virtue of family ties and culture. The parents of the baby asked the court to make an order authorising the taking of bone marrow from the one year old so that it could specifically be transplanted into her cousin and potentially save his life.

In Victoria this kind of procedure is governed by the Human Tissue Act 1982 (Vic) which provides prohibition against the removal of tissue from children except in certain circumstances, ’tissue’ being defined to include an organ or part of a body. There is an exception for a class of children. A parent may give consent for the removal from the body of a child of specified regenerative tissue for the purpose of transplantation to the body of a brother, sister or parent of the child. In addition the medical practitioner who has to certify in these circumstances must be satisfied that the brother or sister is likely to die unless the tissue is transplanted.

Despite the prohibition in the state legislation, because this was an application made to the Family Court under the Family Law Act 1975 (Cth), it was open to the trial judge to find that the Family Law Act overrode the state legislation. …

What about specifically for intersex and transgender kids?

As for transgender and intersex children specifically, the implications are profound. Let me give you an example.

The Grand Chamber of the European Court of Human Rights, in the decisions of Goodwin v United Kingdom and I v United Kingdom overturned earlier decisions to find that failure of states to legally recognise gender reassignment breached Article 8 of the European Convention. In particular, it was found that requiring post-operative transsexuals to live in an ‘intermediate zone’ as neither one gender nor the other interfered with Article 8 rights to personal development and physical and moral security in the full sense enjoyed by others in society.

In what to me is a fascinating example of convergence between international and domestic law, the Grand Chamber quoted at length from the Family Court of Australia’s decision in Re: Kevin in which Justice Chisholm found that ” .. .it is wrong to say that a person’s sex depends on any single factor, such as chromosomes or genital sex; or some limited range of factors, such as the state of the person’s gonads, chromosomes or genitals (whether at birth or at some other time). …

Editorial comment by Gina:

When Family Court Chief Justice Bryant spoke about the removal of tissue from non-consenting children, she referred  to the sharing of tissue, such as bone marrow, between siblings or related children for life preserving reasons as the only exception to a general prohibition against tissue removal. Chief Justice Bryant then went on speak about trans and intersex children without addressing the obvious question of tissue removal from intersex infants.

Tissue removal, gender stereotyping and behaviour enforcement on newborn and in early infancy has profound and life long consequences for intersex children.

Tasmanian Commissioner for Children Paul Mason has noted the difficulties for intersex children and has been effective in bringing them to international attention. He is especially aware of those issues concerning surgery that Chief Justice Bryant sidestepped.