Articles and Case Studies

Legal Issues – Female Genital Mutilation and Female Genital Cosmetic Surgery

07 Jun 2016

Hospital bed

Female genital mutilation (FGM) is currently a criminal offence in Australia. The penalties for FGM range from 7-12 years’ imprisonment.

While there is some variation in each state and territory, the legislation is broadly consistent in defining FGM as including any of the following:

  • clitoridectomy
  • excision of any other part of the female genital organs
  • infibulation or any other similar procedure
  • any other mutilation of the female genital organs.

Depending on the state or territory, the FGM legislation provides exceptions relating to medical procedures:

  • for genuine therapeutic purposes
  • if necessary for the health of the person
  • performed on a person in labour or who has just given birth, and for medical purposes connected with that labour or birth
  • for sexual re-assignment procedures.

Culture or religion is no defence for FGM

Cultural, religious or other social custom is not regarded as a genuine therapeutic purpose. It is not a defence to a charge of FGM that the person on whom the procedure was performed, or their parent, consented to the procedure.

Recently, there has been a successful prosecution under the FGM legislation in NSW.2

A 2013 review by the Attorney General’s Department3 noted the broad definition of FGM and the removal of consent as a defence, and that this raises issues in relation to female genital cosmetic surgery (FGCS) which may involve procedures technically very similar to those defined in the FGM legislation. The review further notes that the status of these procedures under existing laws is untested and is a complex issue.

FGCS is on the rise in Australia

The incidence of FGCS in Australia is increasing4 and a number of clinics advertise various procedures. It is arguable that some of the FGCS procedures fall within the definition of FGM and some of the procedures may be contrary to the FGM legislation, if the exceptions under the FGM legislation do not apply. The absence of comprehensive clinical guidelines for FGCS increases the risk that practitioners who perform these procedures may be prosecuted.

The doctor’s role in educating and counselling patients

Concern has been expressed that while there has been a significant increase in demand for FGCS, what is involved in these procedures and the associated risks and benefits is not clear.5 A role for practitioners in educating and counselling patients has been identified, and resource material for General Practitioners and other health professionals is available.5,6,7 In 2015, the RACGP produced guidelines on FGCS, and RANZCOG updated their statement on vaginal rejuvenation and cosmetic vaginal procedures.


Summary points

  • Medical practitioners who are involved in FGCS should ensure they are familiar with the professional guidelines and the FGM legislation in their state or territory.
  • If you are uncertain as to how to proceed in a particular situation, we encourage you to contact our Medico-legal Advisory Services team for advice.

Medical practitioners who are performing cosmetic procedures need to also be aware of new Medical Board Guidelines for Cosmetic Procedures effective 1 October 2016 – see our Medico-legal Blog post.

See also the article in our upcoming Spring/Summer 2016 edition of Defence Update.

Karen McMahon
Medico-legal Adviser (Solicitor)
MDA National


References

  1. Crimes Act 1900 (ACT) s73-77; Crimes Act 1900 (NSW) s45; Criminal Code Act (NT) s186A-186D; Criminal Code 1899 (Qld) s323A-323B; Criminal Law Consolidation Act 1935 (SA) s33-33B ; Crimes Act 1958 (Vic) s32-34A; Criminal Code Act 1924 (Tas) s178A, 178B, s389; The Criminal Code (WA) s306.
  2. Gardiner, S. Mother, Midwife and Sheikh Guilty in Australia's First Genital Mutilation Trial. SMH 12 November 2015. Available at: smh.com.au/nsw/mother-midwife-and-sheikh-guilty-in-australias-first-genital-mutilation-trial-20151112-gkx0b3.html
  3. Attorney General’s Department. Review of Australia’s Female Genital Mutilation Legal Framework Final Report. Barton, ACT: AGD, 2013. Available at: ag.gov.au/publications/documents/reviewofaustraliasfemalegenitalmutilationlegalframework/review%20of%20australias%20female%20genital%20mutilation%20legal%20framework.pdf
  4. Department of Health. MBS Reviews: Vulvoplasty Report. Canberra, ACT: DOH, 2014. Available at: health.gov.au/internet/main/publishing.nsf/content/vulvoplasty
  5. RACGP Female Genital Cosmetic Surgery – A Resource for General Practitioners and Other Health Professionals, July 2015. Available at:racgp.org.au/clinical-resources/clinical-guidelines/key-racgp-guidelines/view-all-racgp-guidelines/female-genital-cosmetic-surgery
  6. Vaginal ‘Rejuvenation’ and Cosmetic Vaginal Procedures [RANZCOG Statement], March 2015. Available at: ranzcog.edu.au/RANZCOG_SITE/media/RANZCOG-MEDIA/Women%27s%20Health/Statement%20and%20guidelines/Clinical%20-%20Gynaecology/Vaginal-rejuvenation-and-cosmetic-vaginal-procedures-(C-Gyn-24)-Review-March-2019.pdf?ext=.pdf
  7. Female Genital Cosmetic Surgery: Investigating the Role of the General Practitioner. AFP 2015;44,(11):822–825. Available at: racgp.org.au/afp/2015/november/female-genital-cosmetic-surgery-investigating-the-role-of-the-general-practitioner/
Clinical, Regulation and Legislation, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology
 

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