Re Carla: An Error in Judgment

QUT Law Review Vol 18, No 2, 77-92; DOI: 10.5204/qutlr.v18i2.760

U. of Adelaide Law Research Paper No. 2019-93

17 Pages Posted: 11 Jul 2019 Last revised: 12 Jul 2019

See all articles by Bernadette Richards

Bernadette Richards

University of Adelaide - School of Law

Travis Wisdom

University of Adelaide, Law School

Date Written: July 11, 2019

Abstract

As Justice Brennan succinctly explained in Department of Health and Community Services v JWB & SMB (Marion’s Case), every person has a unique character and dignity that warrants respect and protection under the law. This extends to every member of society, whatever their race, gender, sexual orientation, sex characteristics or religion. If dignity is to be respected then the affected person should be at the centre of any enquiry, their preferences heard and their interests protected. Sadly however this ideal does not always translate into practice and a recent decision regarding surgical interventions on intersex children is an example of a situation in which the affected person’s rights and future interests were not afforded clear priority. The decision of Re: Carla (Medical Procedure) [2016] FamCA 7 (‘Re: Carla’) saw the Court handing full authority for decision-making to the parents and the medical fraternity. This withdrawal of the need for external scrutiny of an invasive and potentially non-therapeutic medical procedure signalled a retreat by the judiciary from any meaningful engagement with the child’s future preferences. In this article, we argue that this decision, whilst well intentioned is, quite simply, an error in judgment.

Keywords: Re: Carla (Medical Procedure), Re: Carla

JEL Classification: K1

Suggested Citation

Richards, Bernadette and Wisdom, Travis, Re Carla: An Error in Judgment (July 11, 2019). QUT Law Review Vol 18, No 2, 77-92; DOI: 10.5204/qutlr.v18i2.760; U. of Adelaide Law Research Paper No. 2019-93. Available at SSRN: https://ssrn.com/abstract=3418085

Bernadette Richards (Contact Author)

University of Adelaide - School of Law ( email )

Adelaide, South Australia 5005
Australia

Travis Wisdom

University of Adelaide, Law School ( email )

Australia

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