Surrogacy : is it harder to relinquish genes?

Surrogacy has produced some positive outcomes creating an opportunity for otherwise childless couples to live their dream of parenthood. However it has also been problematic, particularly where the surrogate mother fails to relinquish a child born as a result of the surrogacy arrangement. This article examines whether a surrogate mother, who is genetically related to the child she delivers, is less likely to relinquish the child than one who has no genetic ties. An examination of empirical evidence provides support for this argument. Legislation and case law in three jurisdictions, Australia, the United States and the United Kingdom, is examined to determine which, if any, of these jurisdictions take into account the existence, or otherwise, of a genetic link between the surrogate mother and the child she bears. The article concludes that surrogacy legislation should, subject to exceptional circumstances, encourage surrogacy arrangements where the child and the surrogate are not genetically related.

Me and my body : the relevance of the difference for the distinction between withdrawing life support and euthanasia

In this paper I discuss David Shaw’s claim that the body of a terminally ill person can be conceived as a kind of life-support, akin to an artificial ventilator. I claim that this position rests upon an untenable dualism between the mind and the body. Given that dualism continues to be attractive to some thinkers, I attempt to diagnose the reasons why it continues to be attractive, as well as to demonstrate its incoherence, drawing on some recent work in the philosophy of psychology. I conclude that, if my criticisms are sound, Shaw’s attempt to deny the distinction between withdrawal and euthanasia fails.

A communitarian theory of the education rights of students with disabilities

There is a lack of writing on the issue of the education rights of people with disabilities by authors of any theoretical persuasion. While the deficiency of theory may be explained by a variety of historical, philosophical and practical considerations, it is a deficiency which must be addressed. Otherwise, any statement of rights rings out as hollow rhetoric unsupported by sound reason and moral rectitude. This paper attempts to address this deficiency in education rights theory by postulating a communitarian theory of the education rights of people with disabilities. The theory is developed from communitarian writings on the role of education in democratic society. The communitarian school, like the community within which it nests, is inclusive. Schools both reflect and model the shape of communitarian society and have primary responsibility for teaching the knowledge and virtues which will allow citizens to belong to and function within society. Communitarians emphasise responsibilities, however, as the corollary of rights and require the individual good to yield to community good when the hard cases arise. The article not only explains the basis of the right to an inclusive education, therefore, but also engages with the difficult issue of when such a right may not be enforceable.

Reasonable adjustment and the assessment of students with disabilities: Australian legal issues and trends

Student assessment is particularly important, and particularly controversial, because it is the means by which student achievement is determined. Reasonable adjustment to student assessment is of equal importance as the means of ensuring the mitigation, or even elimination, of disability related barriers to the demonstration of student achievement. The significance of reasonable adjustment is obvious in the later years of secondary school, and in the tertiary sector, because failure to adjust assessment may be asserted as the reason a student did not achieve as well as anticipated or as the reason a student was excluded from a course and, as a result, from future study and employment opportunities. Even in the early years of schooling, however, assessment and its management are a critical issue for staff and students, especially in an education system like Australia’s with an ever increasing emphasis on national benchmarks testing. This paper will explain the legislation which underpins the right to reasonable adjustment in education in Australian schools. It will give examples of the kinds of adjustment which may be made to promote equality of opportunity in the area of assessment. It will also consider some of the controversies which have confronted, or which, it may be speculated, are likely to confront Australian education institutions as they work towards compliance with reasonable adjustment laws.

Enduring documents : improving the forms, improving the outcomes

Most Australian states have introduced legislation to provide for enduring documents for financial, personal and health care decision making in the event of incapacity. Since the introduction of Enduring Powers of Attorney (EPAs) and Advance Health Directives (AHDs) in Queensland in 1998, concerns have continued to be raised by service providers, professionals and individuals about the uptake, understanding and appropriate use of these documents. In response to these concerns, the Department of Justice and Attorney-General (DJAG) convened a Practical Guardianship Initiatives Working Party. This group identified the limited evidence base available to address these concerns. In 2009, a multidisciplinary research team from the University of Queensland and the Queensland University of Technology was awarded $90,000 from the Legal Practitioners Interest on Trust Account Fund to undertake a review of the current EPA and AHD forms. The goal of the research was to gather data on the content and useability of the forms from the perspectives of a range of stakeholders, particularly those completing the EPA and AHD, witnesses of these documents, attorneys appointed under an EPA, and health professionals involved in the completion of an AHD or dealing with it in a clinical context. The researchers also sought to gather information from the perspective of Aboriginal and Torres Strait Islander (ATSI) individuals as well people from culturally and linguistically diverse (CALD) groups. Although the focus of the research was on the forms and the extent to which the current design, content and format represents a barrier to uptake, in the course of the research, some broader issues were identified which have an impact on the effectiveness of the EPA and AHD in achieving the goals of planning for financial and personal and health care in advance of losing capacity. The data gathered enabled the researchers to achieve the primary goal of the research: to make recommendations to improve the content and useability of the forms which hopefully will lead to an increased uptake and appropriate use of the forms. However, the researchers thought it was important not to ignore broader policy issues that were identified in the course of the research. These broader issues have been highlighted in this Report, and the researchers have responded to them in a variety of ways. For some issues, the researchers have suggested alterations that could be made to the forms to address the particular concerns. For other issues, the researchers have suggested that Government may need to take specific action such as educating the broader community with some attention to strategies that engage particular groups within communities. Other concerns raised can only be dealt with by legislative reform and, in some of these cases, the researchers have identified issues that Government may wish to consider further. We do note, however, that it is beyond the scope of this Report to recommend changes to the law. This three stage mixed methods project aimed to provide systematic evidence from a broad range of stakeholders in regard to: (i) which groups use and do not use these documents and why, (ii) the contribution of the length/complexity/format/language of the forms as barriers to their completion and/or effective use, and (iii) the issues raised by the current documents for witnesses and attorneys. Understanding and use of EPAs and AHDs were generally explored in separate but parallel processes. A purposive sampling strategy included users of the documents as principals and attorneys, and professionals, witnesses and service providers who assist others to execute or use the forms. The first component of this study built on existing knowledge using a Critical Reference Group and material provided by the DJAG Practical Guardianship Initiatives Working Party. This assisted in the development of the data collection tools for subsequent stages. The second component comprised semi-structured interviews and focus groups with a targeted sample of current users of the forms, potential users, witnesses and other professionals to provide in-depth information on critical issues. Outreach to Aboriginal and Torres Strait Islander Elders and individuals and workers with CALD groups ensured a broad sample of potential users of the two documents. Fifty individual interviews and three focus groups were completed. Most interviews and focus groups focused on perceptions of, and experiences with, either the EPA or the AHD form. In the interviews with Indigenous people and the CALD focus groups, however, respondents provided their perceptions and experiences of both documents. In general, these respondents had not used the forms and were responding to the documents made available in the interview or focus group. In total, seventy-seven individuals were involved in interviews or focus groups. The final component comprised on-line surveys for EPA principals, EPA attorneys, AHD principals, witnesses of EPAs and AHDs and medical practitioners with experience of AHDs as nominated and/or treating doctors. The surveys were developed from the initial component and the qualitative analysis of the interview and focus group data. A total of 116 surveys were returned from major cities and regional Queensland. The survey data was analysed descriptively for patterns and trends. It is important to note that the aim of the survey was to gain insight into issues and concerns relating to the documents and not to make generalisations to the broader population.

When does pain and distress relief hastening death become killing?

This paper discusses the question of when pain and distress relief known to hasten death would cross the line between permissible conduct and killing. The issue is discussed in the context of organ donation after cardiac death, and considers the administration of analgesics, sedatives, and the controversial use of paralysing agents in the provision and withdrawal of ventilation.

Refusal of medical treatment : a child's prerogative?

Society has a need for children to be able to make health care decisions. Homeless children need access to health care. Parents may not be accessible or competent to consent to their child’s health care. The familial relationship may have broken down. Children may not want their parents to know about drug, alcohol or pregnancy related issues. There is legal and academic support for the right of children to make autonomous decisions with respect to their health care. However what these decisions cover and who can make them is not clear. Whether or not a minor has capacity and is therefore competent to consent to medical treatment is a question of law. Some states of Australia have enacted legislation, while others rely on the common law to determine this issue. At common law a minor is capable of giving consent to medical treatment when he or she achieves a sufficient understanding and intelligence to be able to understand fully what is proposed. Known as ‘Gillick competence’ this is a well known principle of law. The question posed by this paper is whether the decision of a ‘Gillick competent’ child can and should be overridden by the court?

The Commercial Surrogacy Dilemma

In November 2009 the England and Wales High Court (Family Division) granted a parental order pursuant to s30 Human Fertilisation and Embryology Act 1990 in respect of twins who came to be in the custody and control of the applicants (Mr and Mrs A) through a surrogacy arrangement. The particularly unusual and interesting aspect of this case is that, on the evidence, Mr and Mrs A had paid expenses to the surrogate above and beyond those allowed by the legislation, thus creating a commercial surrogacy arrangement. Commercial surrogacy arrangements involve the payment of money to the surrogate mother in excess of those expenses which have been reasonably incurred pursuant to the surrogacy arrangement. This case is relevant to Queensland law because commercial surrogacy arrangements are also prohibited in Queensland and, as in the United Kingdom, the court cannot make a parentage order unless it is satisfied the surrogacy arrangement is not a commercial surrogacy arrangement.

Surrogacy - A Path of Obstacles

Surrogacy has become an effective and accepted form of reproductive technology. It enables couples, regardless of gender or sexuality, to achieve the dream of becoming a parent in circumstances where other forms of reproductive technology and adoption are either not possible or have failed. To its credit, the Queensland parliament has recently brought this state up to date by enacting surrogacy laws that are in line with the majority of statutes implemented throughout the country. The Surrogacy Act 2010 (Qld) allows for the court to make a parentage order in certain circumstances where parties have entered into a surrogacy arrangement. A parentage order effectively transfers parental rights from the birth mother (and her spouse or de facto if there is one) to the intended parents. The requirements which must be satisfied to obtain a parenting order are comprehensive and onerous, making the path to parenthood through a surrogacy arrangement by no means easy. At the heart of the surrogacy issue lies a question, the answer to which has shifted and continues to shift as reproductive technologies continue to increase in success, method and popularity - what is a parent? A recent decision of the Administrative Appeals Tribunal, Hudson v Minister for Immigration and Citizenship, brought to attention the meaning of the word ‘parent’ as it appears in s 16(2) Australian Citizenship Act 2007 (Cth) (‘the Act’). Section 16(2) deals with citizenship by descent and provides that a person born outside Australia may make an application to the Minister to become an Australian citizen if a parent of the person was an Australian citizen at the time of the birth.

Governing depression in Australian legal education : power, psychology and advanced liberal government

Legal educators in Australia have increasingly become concerned with the mental health of law students. The apparent risk posed by legal education to a student’s mental health has led to the deployment of a variety of measures to address these problems. By exploring these measures as productive power relations attempting to shape law students, this paper outlines how this government of depression is achieved, and the potential costs of these power relations. It examines one central Australian text offering advice about how students and law student societies can address depression, and argues that doing so not only involves students adopting particular practices of self-government to shape their legal personae, but also relies on an extension of the power relations of legal education. In addition, this paper will link this advice — which privatises the issue of depression, responsibilises individuals and communities, privileges psychological expertise, and seeks to govern ‘at a distance’ — to broader forms of social administration that presently characterise many Western societies. Doing so allows legal educators to reflect on the effects of their attempts to govern depression, and to consider new ways of altering the power relations of legal education.

Parental responsibility and removal of life sustaining treatment : Re Baby D

The case of Re Baby D (No. 2) has been described as a “landmark decision” as to whether parents themselves can authorise medical staff to withdraw life-sustaining treatment from their child or are required to seek the permission of a court or tribunal. The reasons for the decision that the removal of an endotracheal tube from the airway of Baby D was to treat “a bodily malfunction or disease” and therefore could be authorised by the parents will be explored.

Female genital mutilation : legal, attitudinal and practical reform

Female genital mutilation (FGM) is a cultural practice common in many Islamic societies. It involves the deliberate, non-therapeutic physical modification of young girls’ genitalia. FGM can take several forms, ranging from less damaging incisions to actual removal of genitalia and narrowing or even closing of the vagina. While often thought to be required by religion, FGM both predates and has no basis in the Koran. Rather, it is a cultural tradition, motivated by a patriarchal social desire to control female bodies to ensure virginity at marriage (preserving family honour), and to prevent infidelity by limiting sexual desire. In the USA and Australia in 2010, peak medical bodies considered endorsing the medical administration of a ‘lesser’ form of FGM. The basis for this was pragmatic: it would be preferable to satisfy patients’ desire for FGM in medically-controlled conditions, rather than have these patients seek it, possibly in more severe forms, under less safe conditions. While arguments favouring medically-administered FGM were soon overcome, the prospect of endorsing FGM illuminated the issue in these two Western countries and beyond. This paper will review the nature of FGM, its physical and psychological health consequences, and Australian laws prohibiting FGM. Then, it will scan recent developments in Africa, where FGM has been made illegal by a growing number of nations and by the Protocol to the African Charter on Human and Peoples’ Rights 2003 (the Maputo Protocol), but is still proving difficult to eradicate. Finally, based on arguments derived from theories of rights, health evidence, and the historical and religious contexts, this paper will ask whether an absolute human right against FGM can be developed.

Communicating with the coroner : how religion, culture, and family concerns may influence autopsy decision making

Based on coronial data gathered in the state of Queensland in 2004, this article reviews how a change in legislation may have impacted autopsy decision making by coroners. More specifically, the authors evaluated whether the requirement that coronial autopsy orders specify the level of invasiveness of an autopsy to be performed by a pathologist was affected by the further requirement that coroners take into consideration a known religion, culture, and/or raised family concern before making such an order. Preliminary data reveal that the cultural status of the deceased did not affect coronial autopsy decision making. However, a known religion with a proscription against autopsy and a raised family concern appeared to be taken into account by coroners when making autopsy decisions and tended to decrease the invasiveness of the autopsy ordered from a full internal examination to either a partial internal examination or an external-only examination of the body. The impact of these findings is briefly discussed.

Exploring the contested role of mandatory reporting laws in the identification of severe child abuse and neglect

Significant numbers of children are severely abused and neglected by parents and caregivers. Infants and very young children are the most vulnerable and are unable to seek help. To identify these situations and enable child protection and the provision of appropriate assistance, many jurisdictions have enacted ‘mandatory reporting laws’ requiring designated professionals such as doctors, nurses, police and teachers to report suspected cases of severe child abuse and neglect. Other jurisdictions have not adopted this legislative approach, at least partly motivated by a concern that the laws produce dramatic increases in unwarranted reports, which, it is argued, lead to investigations which infringe on people’s privacy, cause trauma to innocent parents and families, and divert scarce government resources from deserving cases. The primary purpose of this paper is to explore the extent to which opposition to mandatory reporting laws is valid based on the claim that the laws produce ‘overreporting’. The first part of this paper revisits the original mandatory reporting laws, discusses their development into various current forms, explains their relationship with policy and common law reporting obligations, and situates them in the context of their place in modern child protection systems. This part of the paper shows that in general, contemporary reporting laws have expanded far beyond their original conceptualisation, but that there is also now a deeper understanding of the nature, incidence, timing and effects of different types of severe maltreatment, an awareness that the real incidence of maltreatment is far higher than that officially recorded, and that there is strong evidence showing the majority of identified cases of severe maltreatment are the result of reports by mandated reporters. The second part of this paper discusses the apparent effect of mandatory reporting laws on ‘overreporting’ by referring to Australian government data about reporting patterns and outcomes, with a particular focus on New South Wales. It will be seen that raw descriptive data about report numbers and outcomes appear to show that reporting laws produce both desirable consequences (identification of severe cases) and problematic consequences (increased numbers of unsubstantiated reports). Yet, to explore the extent to which the data supports the overreporting claim, and because numbers of unsubstantiated reports alone cannot demonstrate overreporting, this part of the paper asks further questions of the data. Who makes reports, about which maltreatment types, and what are the outcomes of those reports? What is the nature of these reports; for example, to what extent are multiple numbers of reports made about the same child? What meaning can be attached to an ‘unsubstantiated’ report, and can such reports be used to show flaws in reporting effectiveness and problems in reporting laws? It will be suggested that available evidence from Australia is not sufficiently detailed or strong to demonstrate the overreporting claim. However, it is also apparent that, whether adopting an approach based on public health and or other principles, much better evidence about reporting needs to be collected and analyzed. As well, more nuanced research needs to be conducted to identify what can reasonably be said to constitute ‘overreports’, and efforts must be made to minimize unsatisfactory reporting practice, informed by the relevant jurisdiction’s context and aims. It is also concluded that, depending on the jurisdiction, the available data may provide useful indicators of positive, negative and unanticipated effects of specific components of the laws, and of the strengths, weaknesses and needs of the child protection system.