|
Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions
Daily
summary of discussions related to Article 14
RESPECT FOR PRIVACY, THE HOME AND THE FAMILY
UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
A service made possible by Landmine Survivors Network *
Volume 4, #4
May 27, 2004
Afternoon Session
Commenced: 3:09 PM
Adjourned: 5:50 PM
Yemen proposed, in 14.2(b), adding "motherhood
or" before "maternity." In both 14.2(a) and 14.2(b),
it proposed adding at the end : "in accordance with the precepts
of religion, convictions and various customs" because otherwise
it limits equality. In 14.2(c), after family planning, and "sexuality."
In 14.2(d), after "adoption," add "or guardianship."
In Islam, there is no adoption, but guardianship is allowed. In 14.1,
after "institutions," add "should they have decided to
do so." The Arab Group agreed with these changes.
Iran proposed that 14.2(a) and (b) be merged without
losing the main elements. It would add to the end of 14.2(b) the words
"and experience their sexuality and parenthood." If this is
done, 14.2(a) should be deleted because 14.2(b) would now include 14.2(a).
India proposed that in 14.1, "communication"
replaced "correspondence" as suggested in footnote 45. Nearly
all subsequent speakers agreed with this change (Kenya suggested “communication
including correspondence"). The individual statements supporting
this change will not be repeated in these minutes. Under 14.2(b), India
proposed adding "under appropriate law" after "marry,"
and replacing "found a family" with "bring up a family,
and be provided with information and counselling wherever necessary
on the full dimension and responsibilities of marriage." In 14.2(c),
India would remove "have" and replace it with "be provided
with." It proposed deleting the last sentence in 14.2(d), because
the right is guaranteed so it is redundant. Also, 14.2(e) should be
moved to Article 16 on children and should cohere to the CRC; the parenthood
rights of PWD is already dealt with in the early paragraphs.
Japan stated that 14.1 is not limited to PWD so in
the last sentence, after "disabilities," the words "equally
with others persons" should be added. In 14.2(e), it proposed removing
"either directly or indirectly," and adding "all kinds
of their disabilities."
The Holy See proposed that 14.2(a), 2(b), and 2(c)
be merged and read as follows: "The right of men and women with
disabilities of marriageable age to marry and found a family shall be
recognized and no marriage shall be entered into without the free and
full consent of the intending spouses." (ICCPR Article 23.2 and
23.3). The rest of the language is not found in any international Conventions.
The ideas in 14.2(f) may be moved to Article 5.
Argentina proposed making 14.1 and 14.2 two separate
Articles. Paragraph 14.1 addresses privacy of home and family, and 14.2
addresses elimination of discrimination in marriage and family relations,
consistent with the ICCPR. In 14.1, change "privacy" to "private
life." With regard to 14.2 change "shall ensure" to "shall
take appropriate measures aimed at (or with a view to)." In the
Spanish version, 14.2(b) refers to the consent of one spouse; therefore,
this should changed to the plural. It agreed with footnote 49 which
says that some States Parties may have difficulties gaining resources
for adequate assistance. Argentina supported deleting the last sentence
in 14.2(e) which reads "The child shall not however be separated
from parents with disabilities on the basis either directly or indirectly
of their disability," because these decisions should be controlled
by courts.
Uganda proposed replacing the last sentence in 14.2(e)
with "States Parties shall render appropriate assistance to parents
of children with disabilities to enable their children to live with
them."
Philippines supported the positions of India and the
Holy See. In 14.2(a) it proposed adding "That PWD are not denied
the equal opportunity to experience their sexuality, have responsible
sex lives, and other intimate relationships and experience parenthood,
taking into account the best interests of the woman and the child."
Kenya stated that sterilizations should be done only
with consent, because many people with mental disabilities have been
sterilized without their knowledge; States should encourage sexual abstinence.
In 14.2(c), Kenya supported keeping "on an equal basis with other
persons," and adding "including protection against non-consensual
sterilization."
Jordan proposed that 14.2(f) be moved to Article 5.
In 14.2(e), the words "or the disability of their children"
should be added at the end of the sentence.
Ireland, speaking on behalf of the EU, supported "private
life" instead of "privacy," as Argentina suggested in
14.1. For clarity, "freedom of choice" should replace "choice"
in the last sentence. Ireland opposed the proposals of Iran, the Holy
See and Philippines to alter 14.2(a), 2(b), and 2(c). It supported deleting
"on an equal basis with other persons" in 14.2(c), because
this phrase allows for limitation of that right. It suggested making
14.2(d), 2(e), and 2(f) into their own paragraphs. The first part of
14.2(d) should be changed to "States Parties to this Convention
shall ensure that there is no discrimination against PWD in regard to..."
The phrase "disabled parents" in the second sentence should
be changed to "parents with disabilities." In 14.2(e), the
phrase "directly and directly" should be replaced by "solely."
Ireland recommends rewording 14.2(f), as follows: "States Parties
shall take appropriate measures to change negative perceptions and social
prejudices towards sexuality, marriage and parenthood of persons with
disabilities."
China proposed that 14.2(b) should be changed to read:
"The right of PWDs who are of marriageable age to marry and to
found a family on a equal basis with other persons." Referring
to "persons" instead of "men and women" is more
consistent with rest of Convention. The emphasis is on equality so "equal
basis" applies to restrictions on marriage also. Subparagraph 14.2(f)
should become its own Paragraph 14.3. China proposed new language for
14.2(f), as follows: "States Parties shall take effective and appropriate
measures to raise public awareness and provide information to change
negative perception and social prejudices towards sexuality, marriage
and parenthood of persons with disabilities." It proposed a new
title: "Respect for privacy, marriage and family."
Syria favored adding, at the end of 14.1, the words
"through legitimate marriage" and changing the word "adoption"
in 14.2(d).
Australia supported EU”s position and China in regard
to 14.2(b). It prefers 14.2(a), 2(b) and 2(c) not be merged. It supported
deleting, in 14.2(e), "directly and indirectly," and moving
14.2(f) to another part of the Convention.
South Africa suggested a new title, "Respect
for Privacy," because the Article concerns not only privacy in
the home and family, but more broadly. In 14.1, it suggested changing
"personal matter" to "private matter." Respect for
Privacy should include all protections under the UDHR, Article 12. Under
14.2(b), it proposed substituting "rights of all people with disabilities,"
for "all men and women." It supported footnote 46; 14.2 should
include marriage, family and any other relations, including people who
are living together. In 14.2(d) it supported deleting the last sentence
so that the Convention doesn”t treat PWD differently. South Africa recommended
amending 14.2(e) as follows: "The child should not, however, be
separated from parents with disabilities on the basis either directly
or indirectly of their disability."
Canada opposed the amendments of Holy See because
equal opportunity to experience sexuality, and the right to decide number
and spacing of children, are vital. In 14.1, it proposed deleting "including
those living in institutions," because this Article applies to
all PWD no matter where they live. In 14.2(b), "informed"
should be replaced by "full."
Costa Rica supported Argentina in creating two Articles
because two issues are covered, privacy and marriage. In 14.1, "shall
have the right" should be changed to "shall." After the
term "interference" should be added "in all fields,"
because this would address any interference in the life of the PWD.
It proposed removing from 14.1 "privacy in the home, family,"
and adding "... communication, information, and documentation of
PWD." The focus of the Convention is on PWD, not other persons
living with them. Costa Rica proposed adding 14 (bis), a separate article
titled, "Respect for families and relations of the couple (or intimate
relationships)." In the chapeau of 14.2, it suggested adding "couple
relations" after "family relations." To speak only of
marriage is too limiting and this Convention should not limit rights.
In 14.2(a), the last line, in English, refers to parenthood, but in
Spanish the translation is fatherhood; it suggested changing this to
"experience maternity and paternity." Costa Rica proposed
amending 14.2(b) as follows: "The right of all men and women with
disabilities to establish couple relationship or intimate relationships
including marriage, to develop these relationships fully and to find
a family on the basis of free full and reciprocal consent." The
term "spouse" is too limiting. It proposed 14.2(b) (bis):
"The rights of persons with disabilities to reproduction, prohibiting
all practices aimed at involuntary sterilization and/or inhibiting the
exercise of the right to reproduction on the basis of prejudices about
persons with disabilities." The same translation issue as 14.2(a)
applies to 14.2(c); Costa Rica favored the term "boys and and girls"
in the Spanish text and keeping "on an equal basis," and deleting
"with other persons." In 14.2(d), the last part beginning
with "for the purpose of guaranteeing these rights" should
be deleted because this could create discrimination. Again in 14.2(e),
the Spanish translation needs to include both genders and Costa Rica
favored deleting "directly and indirectly," but there is no
need to add "solely," as this could lead to discrimination.
There is a translation problem in 14.2(f) which must be corrected: "States
shall promote" is correct. In 14.2(f), it proposed deleting "marriage,"
and adding "intimate relations including marriage and parenthood
of PWD." Since 14.2(b) refers to "intimate relationships,"
it should not include reference to marriageable age; this article speaks
about men and women, not boys and girls, so marriageable age is assumed.
A mention of age could be acceptable, but not solely for marriage.
New Zealand proposed a positive amendment regarding
forced sterilization, adding to 14.2(c) “retain their fertility, “ before
“decide freely." Since the intention is for PWD to have the same
rights as others, the first three words of 14.2(d), “the rights of"
should be replaced with "That, so that the sentence would begin
"That PWD have the same rights as other persons..." New Zealand
agreed to the Philippines' proposal to refer to the "best interests
of child," but not in 14.2(a) because this addresses sexual relations
and the reference could be misconstrued. Instead, at the end of the
first sentence of 14.2(d) should be added the following: "; and
all cases, the best interests of the child shall be paramount."
This is consistent with CEDAW 16.1(f).
With respect to 14.2(a), 2(b), 2(c), and 2(d), they need to stay separate.
If the AHC accepts Iran”s suggestion, the value of 14.2(a) would be
diminished. Under the UDHR and ICCPR, PWD have the right to marry. Yemen”s
proposal to include religious considerations contradicts the UDHR, Article
16, and would give PWD fewer rights than other people. Likewise, the
Committee should not support India”s suggestions to add counseling,
because this implies a precondition for marriage that does not apply
to other people; it may be tenable in another Article. The change in
14.2(c), "and the means necessary to exercise these rights"
is found in CEDAW already so it does not support this addition as it
may imply different rights. It also pointed out that the Holy See”s
proposal is in fact not a merger, but a deletion of 14.2(a) and 2(c),
which it cannot support.
Qatar suggested replacing 14.1 with "PWD shall
not be subjected to any coercive practice or illegal practice,"
as in the CRC. In 14.2, after, "effective and appropriate measures"
should be added "with a view of encouraging the full participation
of persons with disabilities in family life." Also, 14.2(a) should
be replaced with: "To encourage measures intended to eliminate
social stereotypes concerning marriage of PWD, in particular, the young
women with disabilities, the right to sexuality and to form a family.”
It favored encouraging the media to help eliminate stereotypes. In 14.2(b),
it proposed replacing Afound a family" with "To establish
family relations.” It supported Yemen”s proposal to delete adoption
and add guardianship. It favored adding “within available resources”
at the end of 14.2(d). Because 14.2(f) is contained in its proposed
14.2(a), it should be deleted.
Mexico remarked that the title needs changing; it
suggested expanding. It supported footnote 46, expanding the scope to
marriage and family relations. The second line of 14.2 chapeau should
be amended to add: “all matters relating to their private life, including
. . .” so it does not just include marriage, but all aspects of private
life. It agreed with New Zealand that other treaties should be recognized,
including CEDAW, CRC in 14.2(a) and (b). In 14.2(c), it agreed to delete
“on an equal basis with other persons” because it is redundant. It also
agreed with the need to explicitly prohibit forced sterilizations: “States
Parties shall also ensure that persons with disabilities are not subject
to forced sterilization.” In 14.2(d) Mexico supported the inclusion
of the second sentence because it is in the CRC; this should not be
an excessive burden on the States. It proposed to change the order of
14.2(e), the second sentence should go at the beginning and "directly
or indirectly" should be deleted. In order to safeguard people
with mental disabilities, it proposed for paragraph 14.3: “The provisions
of this Convention shall apply to persons with mental disabilities,
whenever there is no prejudice to the protection granted through legislation,
national norms and procedures relating to their legal capacity or which
are specifically designed to offer them legal protection, to ensure
their physical integrity and to protect their dignity.
Libya remarked that that in 14.2(a), the term “sexual
relationships” is not used in other UN documents and there is always
controversy when it is used in a text. In its understanding, sexual
relationships are only in marital relationships. It proposed adding
to 14.2(b) after the word “sexuality,” “within the framework of married
life,” thus deleting sexual relationships.
Bahrain endorsed Yemen”s proposal to replace “adoption”
with “guardianship” in 14.2(d).
Norway supported retaining 14.2(a), (b) and (c) because
they contain important concepts including experiencing sexuality. 14.2(e)
is unclear without the EU”s proposed changes. It may support Mexico”s
inversion suggestion.
Russian Federation remarked that 14.2(d) needs to
reflect the realities of guardianship, wardship, trusteeship and adoption
of children when it addresses PWD. In our country, if an adult is injured
or has a disease and can not work, then that person is prohibited by
national law from adopting. The following amendment was recommended:
"These rights may be restricted in exclusive situations specifically
stipulated in national legislation."
Morocco supported the deletion of “including those
living in institutions” because all PWD are covered in 14.1. There are
some good amendments to consider on 14.2(a) and (b). In 14.2(c), after
“access to information," Morocco would add "advice.” It remarked
that it is unclear whether 14.2(e) pertains to parents or children;
therefore Jordan”s amendment should be supported.
Serbia and Montenegro supported retaining 14.2(a),
2(b), and 2(c) as separate, and deleting Aon equal basis” in 14.2(c).
It agreed with New Zealand”s amendment regarding sterilization. Because
14.2(d) and 2(e) address parents with disabilities, it suggested creating
new paragraphs for both. It recommended moving 14.2(f) to an article
on awareness, and in adding "solely" to 14.2(e). It also agreed
that the best interest of child must be preserved.
Liechtenstein said that the article should be coherent
and add no new rights, but should only state how the rights of PWD may
be ensured. In 14.1, it proposed replacing the word “choice” with “freedom."
The rights enumerated in 14.2 are distinctive rights.
Thailand supported New Zealand's proposal to retain
14.2(a), 2(b), and 2(c), and its proposed wording, "retain fertility,"
in 14.2(c). It also supported Jordan”s amendment to 14.2(d).
Yemen spoke about its earlier statements, clarifying
its positions on marriage, which is recognized by all religions, and
on sexuality, which it opposes including in the Convention.
Israel suggested adding in 14.2(a), after "parenthood,"
the phrase "in accordance with national legislation” and amended
New Zealand”s language in 14.2(d) to read: “subject to best interest
of the child and in accord with national legislation.”
Brazil supported not combining 14.2(a), (b), and (c)
and did not support addition of religion in 14.2(a).
Saudi Arabia supported Yemen”s proposal with regard
to 14.2(a). It supported the idea that PWD should be able to experience
their sexuality, but supported adding “within the framework of marriage”
because this conforms to its national laws. It also supported Yemen”s
comments on 14.2(b). It supported Jordan”s addition in 14.2(e) regarding
children with disabilities.
The Chair asked for comments from interested NGOs.
Canadian Association for Community Living, on behalf
of Inclusion International and persons with intellectual disabilities
and their families, stated that people with intellectual disabilities
are not often considered as having a family, being married, or being
a part of creating their own family units. CACL emphasized that guaranteeing
the right to privacy, home, and family to people living in institutions
is essentially meaningless, as there is no privacy, home or home life,
or any anticipation of being or having family in institutions. Persons
with intellectual disabilities are very often denied their sexuality
through medications, restraint, violence, abuse, and sterilization.
This Convention should address the issues of persons with intellectual
disabilities, who are not usually considered to have even the same rights
that other people with disabilities enjoy.
People with Disabilities Australia Incorporated, along
with the Australian National of Community Legal Centers
and the Australian Federation of Disability Organizations
supported the draft of Article 14, but suggested that it be divided
into two separate articles, one on privacy and one on personal relationships.
In 14.1, “correspondence” should be replaced by “communications,” and
“medical records” should be replaced by the broader language “personal
information, including medical records.” To further broaden the scope
of this Article, PWDA recommended amending the title, using “personal
relationships” instead of “family.” Similarly, it proposed substituting
“personal relationships, including marriage and family relationships”
for “marriage and family relations.” PWDA emphasized that the Convention
must contain an explicit prohibition on the sterilization of children
and adults with disability for non-therapeutic purposes, including the
prohibition of “voluntary” conduct of parents and others seeking sterilization
of their children. PWDA stated that this prohibition could be located
in either Article 12 or Article 14.
PWDA recommended moving the last sentence of 14.2(d) either to the end
of 14.2(e) or creating a stand-alone subparagraph, as it considered
the sentence applicable to both subparagraphs. It also recommended in
14.2(d) the insertion of “on an equal basis with others” after “the
rights of PWD” to achieve consistency with 14.2(a) and (c). It also
proposed the deletion of “against their will” in 14.2(e), as it is unclear
whether the phrase applies to the child, to the parent, or both.
PWDA strongly urged the Committee not to insert “solely” into 14.2(e),
as suggested by footnote 50, as disability should never be a justification
for the separation of children from their parents. PWDA considered this
to be a potential loophole that would permit authorities to separate
children from their parents.
PWDA urged the inclusion of a new subparagraph guaranteeing children
and parents access to legal aid in relation to these rights.
World Network of Users and Survivors of Psychiatry
considered it essential to have a legal basis for challenging legal
deprivations and emphasized the importance that all PWD have full legal
capacity on an equal basis with others. From this, WNUSP pointed out
the relationship between Article 14 and Article 9 and urged the Committee
not to dilute Article 9, or the rights laid out in Article 14 would
not be guaranteed.
While WNUSUP accepted the notion of the interdependence of human beings,
that all of us need aid and assistance, it cautioned that there is a
linkage between a psychiatric diagnosis and the stereotype of being
incapacitated and in need of special assistance and aid. WNSUP cautioned
against the introduction of provisions in the law in which capacity
is undermined. WNUSP urged against using either “solely” or “directly
or indirectly" in the text of 14.2(e).
Society of Catholic Social Scientists, along with
the Pro Life Family Coalition supported the intervention of the Holy
See with regards to 14.2(a), (b), and (c) that would substitute the
language of the ICCPR. SCSS pointed out that 14.2(a) and (c) incorporate
expansive language that goes beyond that of the ICCPR into “uncharted
and controversial directions” with by mentioning sexual relationship
out of the context of marriage.
It also proposed a new paragraph 3: “States Parties shall take effective
and appropriate measures to protect persons with disabilities of any
age by providing appropriate assistance to strengthen family support
systems while respecting the integrity of the family, the fundamental
group unit of society.”
Disabled Peoples’ International stated that existing
human rights treaties do not explicitly link the protection of the family
to PWD, that PWD do not currently enjoy the highest levels of protections
regarding the rights to live with their families, marry, have intimate
relationships, and start their own families, rights that are fully enjoyed
by others. In the Philippines, for example, disabled women are often
denied the right to marry and start families based on the assumption
that they cannot be good mothers and good wives. DPI directed the Committee
to 14.2(f) and expressed concern that the current text seems to employ
lower standards than earlier WG texts. DPI also suggested that there
be included in this Article language similar to that in Article 5.1,
requiring States Parties to undertake immediate and effective measures.
* Disclaimer
|
