Contesting the certainty of Marion’s case

A/Prof Mandy Shircore, Prof Caroline de Costa

1College of Business, Law and Governance, James Cook University, , , 2Obstetrics and Gynaecology at James Cook University College of Medicine and Dentistry Cairns, ,

In 1991, the High Court of Australia decided in Marion’s Case that court authorization was required to perform a sterilization procedure on a child who lacked capacity to consent. This was so even though parents and medical professionals agreed that the treatment was in the child’s best interest. Marion’s Case has since been considered in a number of cases dealing with diverse medical procedures, ranging from gender dysphoria to abortion. This paper explores and analyses the basis of Marion’s Case and how it has been interpreted in recent decisions. The authors contend that some courts have misinterpreted the underlying basis of Marion’s Case and in doing so intruded unnecessarily on the parent – child relationship and patient autonomy.


Mandy Shircore is an Associate Professor of Law, at James Cook University College of Business, Law and Governance. Mandy Shircore joined JCU Law in 2002 having previously practiced law for over twelve years in both Melbourne and Cairns, primarily in the area of criminal law. Mandy’s research covers legal education, work-integrated learning, negligence, duty of care of public authorities and health law.

Caroline de Costa is Professor of Obstetrics and Gynaecology at James Cook University College of Medicine and Dentistry Cairns, and Editor of the Australian and New Zealand Journal of Obstetrics and Gynaecology. She spent seventeen years in obstetric practice in Sydney before moving to Cairns in 1999 and was appointed Professor in the new JCU medical school in 2004. She has a strong interest in women’s reproductive healthcare, service improvement and law change, particularly in relation to abortion care. She has published more than 100 peer-reviewed scholarly articles and many books and book chapters, both academic and information intended for lay readers.