Chief Judge John Pascoe on the child’s right to know for the 2016 Louis Waller Lecture

The child’s right to know and family law orders was the title of the 2016 Louis Waller Lecture presented by His Honour Chief Judge John Pascoe held on 9 November at the State Library of Victoria, with almost 120 people in the audience.

Every year VARTA hosts this annual lecture series to commemorate the significant contribution Emeritus Professor Louis Waller made to the field of assisted reproductive treatment in Victoria. As this year’s invited speaker, Chief Judge Pascoe, who has been chief judge of the Federal Circuit Court of Australia since 2004, discussed the right of the child to know his or her biological heritage and how this right is threatened by advances in technology as well as being limited by the slow pace of the law to adequately respond.

He said that knowledge of one’s family and genetic heritage is essential to any concept of identity, and to know one’s parents is a fundamental human right.

His Honour talked about the United Nations Convention on the Rights of the Child (CRC) which was created in 1982. Australia was one of the first countries to sign the convention. He explained that the “CRC was ground-breaking, as it was the first international law to recognise the importance of a child to know his or her origins; not only for medical and practical reasons, but also for the sense of identity and belonging which that knowledge entails.”

He said that according to the CRC, assisted reproductive treatment (ART) that uses anonymous genetic material breaches a child’s right to know.

His Honour said there is “clear authority within both our legal and social community that identity is the crucial part of the right to know. Any move by a parent or State to try to conceal, destroy or prevent a child from knowing his or her origins – both biological and social – is to be correctly regarded a human rights violation.”

The chief judge identified four threats to the CRC declaration of the child’s right to know:

  1. Although a country like Australia which has signed up to the CRC may have legal obligations to the document, these obligations do not automatically mean that these rights become law in Australia. Therefore, if the laws governing this issue in Australia do not comply with the CRC, the consequences would be minimal.
  2. The CRC protects children not adults, which means that the right to know would not apply to a donor-conceived adult.
  3. There are difficulties in determining what exactly the best interests of a child are, but an adult cannot decide the best interests of a child in a way that overrules the rights given to the child by the CRC.
  4. When the right of a child to know conflicts with another person’s rights, it can be difficult to enforce the child’s right without harming other people, for example, a child’s right to know may conflict with the contractual obligations that a clinic owes to its donors.

“However, the fact that balancing may be difficult does not mean that we should ignore fundamental rights. The process of determining how to protect Australia’s children is of the utmost importance. Government is obliged by the international law to which it agreed to make the best interests of the child its primary consideration in domestic legislation,” he said.     

His Honour said that there is no legal right to be a parent although once people become parents they acquire rights attached to that role.

He talked about the importance of birth certificates but that in their current, traditional form, they don’t always cater to the needs of children born from ART. He said: “there should be accommodation of society’s changing understanding of who and what a parent is. A child in today’s society may have more than two parents.”

Towards the end of his speech, Chief Judge Pascoe discussed donor conception registers saying that only four states in Australia – NSW, SA, Victoria and WA - currently require the details regarding donor treatments to be recorded and stored.

“The absence of a national registry is notable. Not having a pan-Australian registry risks people slipping through the cracks. A national registry would facilitate a common point of data collection of all people who donate, who use donated material, and for those wishing to investigate their genetic origins. Moreover, it would offer conformity to the type, manner, and form in which information is made available to and by relevant parties,” he said.

His Honour said that a national registry would go some way to meet Australia’s international obligations arising from the CRC to:

  • prevent discrimination against children
  • promote the best interests of the child
  • allow children to know their parents (however many there may be)
  • preserve a child’s identity.

Chief Judge Pascoe acknowledged the pioneering contribution made by Emeritus Professor Louis Waller towards establishing legal protections for parties affected by ART, and the rights of children in particular.

Concluding his lecture, he said: “There is a duty on all of us, regardless of whether we are doctors or lawyers or scientists or parents, that the rights of the child are protected. 

“Currently, we have a state of disharmony, where often Judges are left to be the ultimate arbiter of confused, questionable, haphazard, and perhaps reckless actions in what should be a well-guided and well-regulated process. The judge is left with a feeling of dissatisfaction at the ambiguity which he or she faces in properly protecting the best interests of the child.

“When the price of inaction, insecurity, or selfish convenience is the permanent loss of a child’s identity, surely our common humanity must demand positive action to protect the most vulnerable.”

Chief Judge John Pascoe was awarded Australia's highest honour, Companion of the Order of Australia, in 2016 for eminent service to the law and to the judiciary, through support for improved access to the justice system for Indigenous peoples, the legal administration and higher education, and an advocate for the prevention of international trafficking of children. He has a particular interest in the elimination of human trafficking in all forms but has developed considerable expertise in the area of preventing the trafficking of newly born children and international commercial surrogacy.

Among his many other involvements in law, Emeritus Professor Louis Waller was at the birth of a world first statutory regulatory regime in Victoria, through his chairmanship of the committee to investigate the social, ethical and legal issues arising from IVF between 1982 to 1984.  The committee report resulted in the passage of legislation – the Infertility (Medical Procedures) Act 1984 and Professor Waller went on to chair the Standing Review Advisory Committee on Infertility (SRACI) between 1984 and 1994.  He then became the inaugural chair of the Infertility Treatment Authority (now VARTA) in 1995 and held this position until 2001.