Bill Madden

Leave to Intervene in Cases of Gender Identity Disorder; Normative Causation; Financial Harms and Involuntary Treatment; and the Right to Be Protected From Suicide

Treatmentof GenderDysphoria in Children,Leaveto Intervene: Re Jamie [2012] FamCAFC 8TheFullCourtoftheAustralianFamilyCourtdealtwithan application to intervene in a case of transsexualismtreatment for children in Re Jamie [2012] FamCAFC 8.Jamie was born a nonidentical twin and was geneticallymale. However, when Jamie was two and a half yearsold, she began to identify as a female. By the time shestarted school, she lived exclusively as a female, woregirl’sclothes,wenttothegirl’stoilet,andwastreatedbyher teachers and classmates as a girl. Jamie was diag-nosed as having childhood gender identity disorder andher treatment team recommended that she, initially, begiven puberty suppressing hormones and, secondly,oestrogen treatment. The matter went to trial beforeDessau J, who concluded that the treatment was a spe-cial treatment that had to be approved by the court andwhich could not be consented to by the parents.Further, her Honour decided that she would onlyconsent to the first stage of treatment and not tothe oestrogen therapy, given that Jamie was veryyoung and that the second stage of therapy couldcommence at a later time when Jamie may be ableto make her own medical decisions. The matterhas been appealed by Jamie’s parents to the FullFamily Court, on the basis, amongst other things,that the treatment was not a “special medical pro-cedure” andcouldbeconsentedtobyparents.In Re Jamie concerns an application by a publicauthority to intervene in the matter. The publicauthority’s identity was not disclosed, but itwished to intervene in the matter given the publicinterest concerning the question of whether treat-ment for gender identity disorder was a “specialmedical procedure.” Importantly, an intervenerbecomes a party to the proceedings with all therights, duties, and liabilities of a party (at [35]).

Untangling the Surrogacy Web and Exploring Legal Duties Following the Discharge of Mental Health Patients

Surrogacy agreements represent unique legal questions that must be answered with great care. In Australia we had the recent BBaby Gammy^ scandal that involved an international surrogacy agreement and claims of abandonment of a child with Down’s syndrome. This story served to reinforce concerns that surrogacy turns children into a commodity that can be put to one side if expectations are not met. Of course, surrogacy agreements do not always end in this manner and often the outcome is positive. There are, however, underlying legal questions regarding the status of the child, with some children, born as the result of international surrogacy agreements, being practically stateless when the nation of the commissioning parents refuses to issue passports to allow the children to return Bhome^ with their Bparents.^Where the relationship is local, however, and there is clear legislation, the issues can be less problematic but can become complex where a party wishes to withdraw from the agreement, the child is deemed to be less than Bperfect,^ or the parties wish to create a relationship that is outside of existing legal framework. In Australia there was originally reluctance to acknowledge surrogacy as an appropriate arrangement, but in more recent times there has been a significant policy shift and now all jurisdictions except for the Northern Territory have legislative recognition of altruistic surrogacy agreements. In each of these jurisdictions (besides Western Australia), the relevant Acts make provision for parentage orders to be made by the appropriate court (this differs between jurisdictions; in South Australia, for example, the orders are made by the Youth Court of South Australia and in New SouthWales it is the Supreme Court), and a birth certificate can be amended to indicate that the commissioning parents are the parents of the child. The original documentation is not, however, to be destroyed, and the child can, upon application, obtain access to the full record. Western Australia has taken the additional step of creating a presumption that it is in the best interests of the child for the Barranged parents^ (commissioning parents) to be named as the parents of the child (s 13(2) Surrogacy Act 2008 (WA)). Thus the legislatures in Australia have taken proactive steps to try to ensure certainty with regards to parentage of children born as a result of Bioethical Inquiry DOI 10.1007/s11673-014-9592-6

Assessment of Damages for Wrongful Birth and Consolidation in Advance Care Directives

The recent decision of Waller v James involved a claim by the plaintiff parents for damages for wrongful birth against the defendant doctor, Dr James, a gynaecologist with a practice in infertility and IVF procedures, who had been consulted by the plaintiffs. The second plaintiff, Mr Waller suffered an inherited anti-thrombin deficiency (ATD), a condition which results in a propensity for the blood to clot, at least in adults. Dr James subsequently recommended IVF treatment. The first plaintiff, Mrs Waller became pregnant after the first cycle of IVF treatment. Her son Keeden was born on 10 August 2000 with a genetic anti-thrombin deficiency. Keeden was released from hospital on 14 August 2000. However, he was brought back to the hospital the next day with cerebral thrombosis (CSVT). As a result of the thrombosis, he suffered permanent brain damage, cerebral palsy and related disabilities. The plaintiffs alleged that the defendant was in breach of contract and his common law duty of care to the plaintiffs in failing to inform them, or cause them to be informed, of the hereditary aspects of ATD. They further alleged that, had they been properly informed, they would not have proceeded to conceive a child using the male plaintiff’s sperm and therefore avoided the harm that had befallen them. The plaintiffs claimed damages to compensate them for their losses, including psychiatric and physical injuries and the costs of having, raising and caring for Keeden. The defendant was held to be not liable in negligence by Justice Hislop of the Supreme Court of New South Wales because a finding was made on medical causation which was adverse to the plaintiffs claim.

Organ donation, discrimination after death, anti-vaccination sentiments, and tuberculosis management.

John Coggon, Bill Madden, Tina Cockburn, Cameron Stewart, Jerome Amir Singh, Anant Bhan, Ross E. Upshur and Bernadette Richards

Sale of sperm, health records, minimally conscious states, and duties of candour

In previous columns we have discussed the introduction of property rights in disputes over human tissue (Madden and Cockburn 2011; Stewart 2009). One of the major issues that arises from the recognition of property rights relates to how the law should respond to contracts concerning the sale of human tissue. This was recently discussed in St George Fertility Centre Pty Ltd v Clark [2011] NSWSC 1276, where the court adopted a classic approach of sale of goods. The case was concerned with the purchase of frozen sperm by Dr. Clark from the St. George Fertility Clinic (St. George) for use in her own fertility practice, known as Fertility First. The Supreme Court had found, amongst other things, that the contract had been breached because St. George Fertility Clinic had failed to identify donors of sperm in compliance with the Australian Code of Practice for Assisted Reproductive Technology Units of the Reproductive Technology Accreditation Committee (RTAC). Furthermore, St. George had breached its promise in the contract to transfer the records for all of the sperm. It did not give details of the sperm donor, consent forms, results of screening tests, and/or sufficient information to Dr. Bioethical Inquiry (2012) 9:7–14 DOI 10.1007/s11673-011-9347-6

Loss of chance in Australia: Tabet v Gett [2010] HCA 12

The availability of compensation for loss of chance in clinical negligence cases appeared to be available in Australia for a time, even after the conclusion reached by the House of Lords in Gregg v Scott. However, the issue only recently came for consideration by Australias highest appellate court, which in Tabet v Gett adopted an approach more closely aligned with the majority in Greg v Scott. Unlike the factual background to Gregg v Scott, in Tabet v Gett the patients physical condition had already crystallized. For that reason, the Australian decision may be of interest to readers in the United Kingdom as some commentators have suggested that a factual scenario similar to that in the Australian case may have given rise to a different outcome.