Legislation
The sterilisation of disabled children is covered by three different pieces of legislation: the Family Law Act (1975), the Guardianship and Administration Act (2000) and the Disability Services Act (2006).
FAMILY LAW ACT (1975)
Section 69Z in the Family Law Act 1975 directly applies to the issue at hand. This section states that if a child under the age of 18 must have a medical procedure carried out, they must do so as long as they have consent from a parent, guardian or anyone who has the responsibility for the child's long term or day-to-day health (Office of Legislative Drafting, 2009).
This section allows the parents make decisions on behalf of the child as long as it is in the best interest for the child. This law created many ethical problems regarding sterilisation and as a result, the following legislation was brought in to Queensland.
FAMILY LAW ACT (1975)
Section 69Z in the Family Law Act 1975 directly applies to the issue at hand. This section states that if a child under the age of 18 must have a medical procedure carried out, they must do so as long as they have consent from a parent, guardian or anyone who has the responsibility for the child's long term or day-to-day health (Office of Legislative Drafting, 2009).
This section allows the parents make decisions on behalf of the child as long as it is in the best interest for the child. This law created many ethical problems regarding sterilisation and as a result, the following legislation was brought in to Queensland.
GUARDIANSHIP AND ADMINISTRATION ACT (2000)
This legislation looks far more in depth to the issue of sterilisation. Sections 80B, 80C and 80D all look at this particular medical procedure and whether or not it is in the child's best interests.
Section 80C states that the sterilisation of a child is not unlawful provided that consent is given by the tribunal and that the tribunal may only give consent to the sterilisation if
they see that it is in the best interest for the child. Section 80D provides information on whether the sterilisation is in the best interest for the child. 80D states that the sterilisation of a child with an impairment is in the child's best interests only if it is necessary, there is no method of contraception or the child has problem with menstruation. This is in addition to the child's impairment affecting communication, social interaction or learning or if it is reasonably likely that when the child turns 18, they will not have the capacity to consent to sterilisation (Queensland Government, 2012).
This legislation limits the amount of unnecessary sterilisations performed on disabled children. However, it is important to note that this legislation was not enforced at the time of Marion's case.
DISABILITY SERVICES ACT (2006)
Under section 19 of this act, it states that people with a disability have the same human rights as other members of society. Furthermore, this section mentions that people with a disability have a right to participate actively in decisions affecting their lives in addition to the recognition of their individual autonomy and independence, including the freedom to exercise choice and have control of their lives (Queensland Government, 2006).
This legislation gives people with disabilities, such as Marion, to exercise their human rights. In relation to the sterilisation of disabled children, it also gives the children a say when considering the sterilisation of themselves.
This legislation looks far more in depth to the issue of sterilisation. Sections 80B, 80C and 80D all look at this particular medical procedure and whether or not it is in the child's best interests.
Section 80C states that the sterilisation of a child is not unlawful provided that consent is given by the tribunal and that the tribunal may only give consent to the sterilisation if
they see that it is in the best interest for the child. Section 80D provides information on whether the sterilisation is in the best interest for the child. 80D states that the sterilisation of a child with an impairment is in the child's best interests only if it is necessary, there is no method of contraception or the child has problem with menstruation. This is in addition to the child's impairment affecting communication, social interaction or learning or if it is reasonably likely that when the child turns 18, they will not have the capacity to consent to sterilisation (Queensland Government, 2012).
This legislation limits the amount of unnecessary sterilisations performed on disabled children. However, it is important to note that this legislation was not enforced at the time of Marion's case.
DISABILITY SERVICES ACT (2006)
Under section 19 of this act, it states that people with a disability have the same human rights as other members of society. Furthermore, this section mentions that people with a disability have a right to participate actively in decisions affecting their lives in addition to the recognition of their individual autonomy and independence, including the freedom to exercise choice and have control of their lives (Queensland Government, 2006).
This legislation gives people with disabilities, such as Marion, to exercise their human rights. In relation to the sterilisation of disabled children, it also gives the children a say when considering the sterilisation of themselves.