Re Inaya (Special Medical Procedure)

The Honourable Justice Cronin of the Family Court of Australia considered an application brought by the parents of a thirteen-month-old child, Inaya Kamran, seeking authorisation for a bone marrow harvest or peripheral blood collection procedure to be performed on their daughter for the benefit of her seven-month-old cousin, Mansour Kamran. The core of the dispute involved whether the Family Law Act 1975 (Cth) empowered the Court to authorise a procedure that might otherwise constitute an offence under section 44(1) of the Human Tissues Act 1982 (Vic), and whether such consent fell within the scope of parental responsibility, ultimately considering the best interests of the child donor.

The Court was required to determine two primary legal issues. Firstly, it had to ascertain whether the Family Law Act 1975, specifically sections 67ZC and 60B(2)(i), conferred jurisdiction upon the Family Court to authorise a special medical procedure on a child, even if that procedure was prohibited by state legislation. Secondly, the Court needed to consider the principle of constitutional inconsistency under section 109 of the Commonwealth Constitution, examining whether the Victorian Human Tissues Act 1982 was inconsistent with the federal Family Law Act 1975 in this context.

Justice Cronin reasoned that the Family Law Act 1975, by granting the Court broad powers to make orders for the welfare of children, including authorising special medical procedures, intended to override any conflicting state legislation that would prevent such a life-saving intervention. The Court found that the procedure was in the best interests of both children, given the critical medical need of the recipient cousin and the minimal risk to the donor child. The Court concluded that it possessed the power to authorise the procedure, effectively rendering the state prohibition inapplicable due to the paramountcy of federal law in matters concerning children's welfare.

Consequently, the Court made orders authorising Mr. and Mrs. Kamran to consent to the HSC procurement (bone marrow harvest) procedure on their daughter, Inaya Kamran, and authorised the procedure itself for the purpose of transplanting the bone marrow to Mansour Kamran. The Court also granted liberty to apply, ordered that proceedings be heard in camera, and made orders regarding the non-publication of names and the dismissal of outstanding applications.