Sterilisation, Disability and Wellbeing: The Curative Imaginary of the “Welfare Jurisdiction”

Court-authorised sterilisation of women and girls with disability has been widely criticised by disability rights advocates and international human rights bodies as a form of violence and discrimination. This chapter examines the Family Court of Australia’s power pursuant to its ‘welfare jurisdiction’ to authorise parental consent to non-therapeutic sterilisation of girls with disability. The chapter locates the Family Court’s welfare jurisdiction at the intersections of health law, family law and Australian Constitutional law, and draws on critical disability studies approaches to disability and critical legal approaches to jurisdiction in order to explore how the judiciary is positioned to legitimately permit the violence of sterilisation. The chapter engages in a close analysis of the majority judgments in two leading High Court of Australia decisions on sterilisation: Secretary, Department of Health and Community Services v JWB (1992) (Marion’s Case) and P v P (1994). The chapter argues that judicial authority to permit sterilisation both shores up limits and gaps in the scope of state authority vis-à-vis disabled girls’ bodies and individualises and privatises the injustices of sterilisation. This argument signals the need for greater engagement with discourses of humanitarianism, care and flourishing, particularly when these discourses are mobilised by law in coercive and violent contexts against people with disability