Last updated 16 August 2016
Any person is free to marry provided they are old enough, and they understand the nature and effect of the marriage ceremony at the time of the ceremony. Usually there is no legal reason why a person with a disability may not marry, unless the nature of their disability is such that they cannot understand the nature and effect of the marriage ceremony.
In Queensland, a person’s capacity to consent to marriage is defined in sch 4 of the Guardianship and Administration Act 2000 (Qld). This test is designed to assess whether the person is capable of:
- understanding the nature and effect of the decisions about the matter
- freely and voluntarily making decisions about the matter
- communicating the decision in some way.
People with a disability have the right to become parents. There is no presumption in the law that a person with an intellectual disability is an unfit parent.
A person with a disability has the right to choose to use contraception and decide which type to use.
In the case of a person under the age of 18, a sterilisation that is to be performed for non-therapeutic reasons can only be performed with the consent of the court. The relevant legislation is the Family Law Act 1975 (Cth), and applications are referred to as special medical procedure applications. When considering an application for consent for sterilisation, courts must not authorise a sterilisation that is proposed on account of its convenience as a contraceptive measure.
In the case of an adult, sterilisation can only be performed with that person’s consent. Any medical treatment performed without consent, except in an emergency, can constitute an assault for which the doctor can be held legally responsible.
However, if a person is over 18 years of age and is not able to give consent, then sterilisation falls under special healthcare matters for the purposes of the Guardianship and Administration Act 2000 (Qld). On application, the Queensland Civil and Administrative Tribunal (QCAT) can give consent for these procedures—an attorney or guardian cannot. The tribunal must decide whether or not the procedure is necessary for the adult’s health and wellbeing.
For further information where a person is not capable of giving consent, see the chapter on Laws Relating to Individual Decision Making.
Abortion is illegal in Queensland unless the operation is performed for the preservation of the mother’s life (ss 224–225, 282 Criminal Code Act 1899 (Qld)). It is still unclear exactly how broadly the courts will interpret the requirement that the operation be for the preservation of the mother’s life, and there are no formal legal mechanisms for obtaining consent on behalf of a woman with a disability who is unable to consent herself.
On application, QCAT can provide consent for a termination of a pregnancy to be carried out to preserve the safety of the mother where there is serious danger to her life, or physical or mental health.
In general, a child cannot be adopted without the consent of the parents.
People with disabilities as adoptive parents
People with a disability can encounter difficulties when applying to adopt a child in Queensland.
Part 6 of the Adoption Act 2009 (Qld) (Adoption Act) provides for the assessment of prospective adoptive parents, and div 5 outlines the basis for deciding suitability generally. Under s 122, if the person has a disability or impairment then there are additional criteria that the Chief Executive of the Department of Communities, Child Safety and Disability Services must consider in deciding if the person is suitable. These additional criteria exclude many people with a disability from being deemed suitable to be a prospective adoptive parent.
Needs of a child with a disability
Section 156 of the Adoption Act provides that the particular needs of a child with a disability must be taken into consideration when selecting prospective adoptive parents.