Abstract
As Justice Brennan succinctly explained in Department of Health and Community Services v JWB & SMB (Marion’s Case),[1] 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.
 
 [1] Ibid.
Highlights
As Justice Brennan succinctly explained in Department of Health and Community Services v JWB & SMB (Marion’s Case),[2] every person has a unique character and dignity that warrants respect and protection under the law
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
Re Lesley (Special Medical Procedure) [2008] FamCA 1226 (‘Re Lesley’) saw the Family Court concluding that surgical intervention of intersex children falls within the Marion’s Case test and is not within the scope of parental authority, whilst Re: Carla reached the opposite conclusion
Summary
Re Lesley (Special Medical Procedure) [2008] FamCA 1226 (‘Re Lesley’) saw the Family Court concluding that surgical intervention of intersex children falls within the Marion’s Case test and is not within the scope of parental authority, whilst Re: Carla reached the opposite conclusion. This detailed consideration of the differing judicial approaches to the issues will, of necessity, contain some explanation of the Marion’s Case test and will assert that there continues to be a need for external scrutiny of decisionmaking in these situations. We are not addressing the other, entirely legitimate argument that we remove the existing binary characterisation of humans as either male or female, this is a different debate, to be had elsewhere, and is well beyond the scope of this discussion.[19]
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