Appendix 4

Female genital cosmetic surgery and the law

Currently, each state and territory has provisions in their respective criminal law statutes which make the practice of female genital mutilation (FGM)¹ illegal.  These laws apply extraterritorially in all jurisdictions, which means people who are involved in FGM overseas or in another state or territory can be charged under these laws. In all states except NSW, it is also an offence to remove someone from the jurisdiction with the intention of having FGM performed on that person. The penalties range from seven years to 21 years’ imprisonment.

All jurisdictions define FGM. These definitions are broadly consistent with each other and cover the same conduct for FGM as defined by the World Health Organisation (WHO). Under the legislation in each state and territory, having the consent of the person who is to be the subject of FGM, or their parent or guardian, is not a defence for the practice of FGM.

The legal definitions

The various statutes define FGM as the excision, infibulation or any other mutilation of the whole or any part of the female genitalia². The definitions would arguably apply to some procedures such as labiaplasty. However, the Acts state that it is not an offence if a procedure is performed for a “genuine therapeutic purpose”³; a “proper medical purpose”⁴; or is “necessary for the health”⁵ of the patient.  

In a report released in March 2013, the Commonwealth Attorney-General’s Department raised concerns about how the law and policy apply to female genital cosmetic surgery (FGCS). The report stated that anecdotal evidence suggests the incidence of FGCS has increased significantly since 1998, when the Model Laws (on which the legislation in each state and territory is based) were drafted. Statistics from the Australian Institute of Health and Welfare (AIHW) show the number of labiaplasty procedures performed annually has been steady for the last 10 years, at about 1,500 procedures per year.

It was contemplated in the Attorney-General’s report that the legislation, and how it may apply to FGCS, would be reviewed and clarified. The report’s recommendations were considered by the Standing Council on Law and Justice⁶ in April 2013 and agreed to by the Standing Council, but there have been no further developments as at the date of release of the toolkit. Therefore some legal uncertainty remains.

In the interim, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) released an updated statement in relation to FGCS in March 2015⁷.

Concerns and recommendations

It is arguable that the legislative exceptions for medical treatment would apply to a cosmetic procedure where consent had been provided and the procedure is performed by an appropriately qualified medical practitioner.

However, if a procedure is purely cosmetic, for example because a patient has anxiety about the appearance of their labia, it may not trigger the exceptions under each State and Territory Act. This applies particularly in NSW and Victoria, where the respective Acts state the procedure must be “necessary for the health of the person on whom it is performed” but without defining the words

“necessary” and “health”. This concern is heightened given the patient’s consent is not a defence⁸.

The absence of greater legal clarity does not mean that FGCS needs to be avoided altogether. Rather, it means that medical practitioners should be mindful of this when discussing FGCS with patients and documenting those discussions in their clinical records.

This uncertainty is likely to have a greater impact on the surgeons performing the procedures in question, rather than on general practitioners or other health professionals whose involvement will largely be limited to referrals. However, in the course of providing such referrals to patients, there is likely to be some discussion about the patient’s reason for requesting the referral and you may find yourself giving them some information or advice about various options in general terms.

Given the legal uncertainty, it is even more important that doctors make sure their clinical records include notes addressing:

• The patient’s presenting problem and concerns;
• Any options for treatment discussed with the patient;
• The nature and details of the referral provided;
• Any other matters discussed with the patient regarding the procedure or their concerns.

Avant will continue to monitor this issue and how it affects members. If in doubt, please contact Avant on 1800 128 268.

1. See sections 73 to 77 inclusive of the Crimes Act 1900 (ACT); sections 15, 32 to 34A inclusive of the Crimes Act 1958 (Vic); section 45 of the Crimes Act 1900 (NSW); sections 323A and 323B of the Criminal Code 1899 (Qld); sections 186A, 186B, 186C and 186D of the Criminal Code Act 1983 (NT); sections 33, 33A and 33B of the Criminal Law Consolidation Act 1935 (SA); sections 178A, 178B, 178C and Schedule 1 of the Criminal Code Act 1924 (Tas); section 306 of the Criminal Code Act Compilation Act 1913 (WA).
2. This includes the labia majora, labia minor or clitoris, as specified in some of the state and territory legislative definitions.
3. In the ACT, Northern Territory, Queensland, South Australia and Tasmania.
4. In Western Australia.
5. In New South Wales and Victoria.
6. Now called the Law, Crime and Community Safety Council (LCCSC).
7. “Vaginal ‘rejuvenation’ and cosmetic vaginal procedures” statement, C-Gyn 24, RANZCOG, reviewed and released in March 2015.
8. To date, there have been no successful prosecutions under the various Acts in the states and territories. As far as we are aware, there have only been two cases where charges have been brought in NSW and one case in WA. The charge in the first NSW case was against a medical practitioner but was not upheld by the jury because of the “medical necessity” defence (charges were subsequently brought and upheld under a different section of the Crimes Act).  The WA case (against parents of the victim) and the second NSW case (against eight people including a retired nurse) have not yet been concluded.

Reproduced with permission from Avant: RACGP fact sheet: Female genital cosmetic surgery and the law. Sydney: Avant; 2015.