Comments, proposals and amendments submitted electronically

Governments

COSTA RICA

Draft Article 14
RESPECT FOR PRIVACY

1. Persons with disabilities shall not be subjected to arbitrary or unlawful interference with their privacy, and have the right to the protection of the law against such interference in all fields. States Parties to this Convention shall take effective measures to protect the privacy of the communications, information and documents of persons with disabilities.

Draft Article 14 Bis

RESPECT FOR FAMILY AND INTIMATE RELATIONS

1. States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to intimate relations and family relations, and in particular shall ensure:

(a) that persons with disabilities are not denied the equal opportunity to experience their sexuality, have sexual and other intimate relations, including marriage, and experience parenthood;

(b) the right of all men and women with disabilities to establish and fully develop intimate relations, including marriage on the basis of free, full and reciprocal consent, and to found a family;

b) bis) the right 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.

(c) the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights;

(d) the rights of persons with disabilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. For the purpose of guaranteeing these rights, States Parties shall render appropriate assistance to disabled parents in the performance of their child rearing responsibilities;

(e) that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. The child shall not however be separated from parents with disabilities on the basis either directly or indirectly of their disability;

(f) the promotion of awareness and the provision of information aimed at changing negative perceptions and social prejudices towards sexuality, intimate relations, including marriage and parenthood of persons with disabilities.

EUROPEAN UNION

Draft Article 14
RESPECT FOR PRIVACY, THE HOME AND THE FAMILY

1. Persons with disabilities, including those living in institutions, shall not be subjected to arbitrary or unlawful interference with their privacy, and shall have the right to the protection of the law against such interference. States Parties to this Convention shall take effective measures to protect the privacy of the home, family, correspondence and medical records of persons with disabilities and their choice to take decisions on personal matters.

EU Proposal: Replace "privacy" by "private life" in line 2 only. Insert "freedom of" before "choice".

2. States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage and family relations and in particular shall ensure:

(a) that persons with disabilities are not denied the equal opportunity to experience their sexuality, have sexual and other intimate relationships, and experience parenthood;

(b) the right of all men and women with disabilities who are of marriageable age to marry on the basis of free and full consent of the intending spouses, and to found a family;

(c) the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights.

EU Proposal: EU suggests that sub-paragraphs (d), (e) and (f) should be included as separate paragraphs, numbered 3, 4 and 5 respectively.

(d) the rights of persons with disabilities in regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. For the purpose of guaranteeing these rights, States Parties shall render appropriate assistance to disabled parents in the performance of their child rearing responsibilities.

EU Proposal: EU suggests replacing the word “parents” with the word “persons” in the second sentence.

(e) that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. The child shall not however be separated from parents with disabilities on the basis either directly or indirectly of their disability;

EU Proposal: The EU suggests that the word “solely” be substituted for the words “either directly or indirectly”.

(f) the promotion of awareness and the provision of information aimed at changing negative perceptions and social prejudices towards sexuality, marriage and parenthood of persons with disabilities.

Following the EU proposals, (d), (e) and (f) would read as follows:

(3) States Parties to this Convention shall ensure that there is no discrimination against persons with disabilities in regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. States Parties shall render appropriate assistance to disabled persons in the performance of their child rearing responsibilities.

(4) States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. The child shall not however be separated from parents with disabilities on the basis solely of their disability;

(5) States Parties shall take appropriate measures to change negative perceptions and social prejudices towards sexuality, marriage and parenthood of persons with disabilities

HOLY SEE

Proposal to Article 14—Respect for privacy, the home and the family

1. (remains unchanged)

2. Merge subsections (a), (b), and (c) into one new subparagraph (a), which reads as follows:

(a) 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)

Subsections (d), (e), and (f) would respectively become subsections (b), (c), and (d)

The Holy See notes that the substance of subsection (f) appears to be already covered in Article 5; however, Article 5 could be more specific and include the substance of the subsection currently found (f).

KENYA

Draft Article 14
RESPECT FOR PRIVACY, THE HOME AND THE FAMILY

Insert the phrase ‘communication including’ between the words ‘family’ and ‘correspondence’ in 1 so that it reads:

1. Persons with disabilities, including those living in institutions, shall not be subjected to arbitrary or unlawful interference with their privacy, and shall have the right to the protection of the law against such interference. States Parties to this Convention shall take effective measures to protect the privacy of the home, family, communication including correspondence and medical records of persons with disabilities and their choice to take decisions on personal matters.

Insert the phrase ‘including protection against non-consensual sterilisation’ between the words ‘persons’ and ‘and’ in 2 (c) so that it reads:

2. (c) the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons, including protection against non-consensual sterilisation and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights;

MEXICO

Mexican proposals to Article 14

Respect for privacy, the home and the family

1. Persons with disabilities, including those living in institutions, shall not be subjected to arbitrary or unlawful interference with their privacy, and shall have the right to the protection of the law against such interference. States Parties to this Convention shall take effective measures to protect the privacy of the home, family, different kinds of communications and medical records of persons with disabilities and their choice to take decisions on personal matters.

2. States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to their private life, including family relations and marriage, and in particular shall ensure:

(a) That persons with disabilities are not denied the equal opportunity to experience their sexuality, have sexual and other intimate relationships, and experience parenthood;

(b) The right of all men and women with disabilities who are of marriageable age to marry on the basis of free and full consent of the intending spouses, and to found a family;

(c) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights. States parties shall also ensure that persons with disabilities are not subject to forced sterilization;

(d) The rights of persons with disabilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation. For the purpose of guaranteeing these rights, States Parties shall render appropriate assistance to disabled parents in the performance of their child-rearing responsibilities;

(e) That a child shall not be separated from his or her parents with disabilities on the basis either directly or indirectly of their disability. A child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child;

(f) The promotion of awareness and the provision of information aimed at changing negative perceptions and social prejudices towards sexuality, marriage and parenthood of persons with disabilities.

SOUTH AFRICA

Draft Article 14: Respect for privacy, the home and the family

The SA delegation wishes to propose that the title be amended to read as: Respect for Privacy. The reason being that the current title is limiting in form as it relates only to privacy at home and family. The provisions of the article adequately speak into privacy i.r.o. of home, family in a comprehensive manner as espoused in Para 1. Further the last part of Para 1 should refer to PRIVATE MATTERS as opposed to personal matters. This will be in keeping with the title of the article that relates to privacy.

My delegation is of the view that the matter of respect for privacy should cover ALL FORMS OF PRIVACY OF AN INDIVIDUAL and also to reflect the full range of human rights protection that are also applicable to people with disabilities.

The new formulation will provide for privacy in totality without being prescriptive. This will be consistent with the expression from Article 12 of the United Nations Declaration on Human Rights and other relevant international Covenants in this respect.

SA is agreeable to paragraph 1 of the article and wishes to note that i.r.o. of footnote 45 we support the use of the expression COMMUNICATION as opposed to correspondence. We are of the view that communication is all inclusive.

My delegation wishes to note that Para 2b should be amended to read THE RIGHTS OF ALL PERSONS WITH DISABILITIES, hence deleting the statement “all men and women”. We are of the view that the new statement will provide for gender sensitive language.

With respect to paragraph 2 my delegation proposes that i.r.o. of footnote 46, we refer to: marriage, family and any other relations.

My delegation is also of the view that the concept of marriage is understood differently in different parts of the world. In some communities there are situations where people are living together and are not married in a conventional way. Therefore the sentence in paragraph 2 should seek to cover all types of relations as well.

Further chair we wish to make the following contributions:

That in Para 2 (d) the last sentence should be deleted and we refer to footnote (49). We are of the view that this assumes that persons with disabilities should be treated differently, which will be contrary to the spirit of this convention.

That in Para 2 (f) we wish to propose an amendment i.r.o. footnote 50 as follows: “The child shall not however be separated from parents with disabilities on the basis, either directly or indirectly, of their disability."

UN System organizations

OHCHR

See references to international human rights conventions and jurisprudence

National Human Rights Institutions

NATIONAL HUMAN RIGHTS INSTITUTIONS

Intervention at the Third Session:
Article 14

Thank you, Chair. We would like to support the New Zealand addition of the words “retain their fertility” in the first sentence of 2 (c).
This not only provides protection against forced sterilization but also forced permanent contraception of disabled persons.

Chair, we would also like to amend paragraph 2 by inserting the words “including reform of family laws containing discriminatory provisions” after the words “family relations”

We propose that the first line of 2 (b) be amended to read “persons” and the words “men and women” be deleted to be consistent with 2 (a)
In paragraph 2 (d) add “where necessary” at the beginning of States parties shall render appropriate assistance… add to the end of that sentence “and ensure equal access to mainstream services supporting parents”

ONTARIO HUMAN RIGHTS COMMISSION

Article 14 - Respect for privacy, the home and the family

14.2: States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage and family relations, …

Footnote 46: The Ad Hoc Committee may wish to consider whether the phrase “marriage and family relations” might be too limiting.
The Commission is supportive of this Article and its subparagraphs. The Commission agrees with the concern raised in footnote 46 that the phrase “marriage and family relations” is too limiting. The Ad Hoc Committee may wish to consider the terms “marital status and same-sex partnership status” in place of “marriage” and define the meaning of these terms. Under Ontario’s Human Rights Code, “marital status” means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage. “Same-sex partnership status” means the status of living with a person of the same sex in a conjugal relationship outside marriage.

An even more inclusive approach would be to define “marital status” to also include a person of the same sex in a conjugal relationship outside or inside marriage. Belgium and the Netherlands have legalized same-sex marriage. And a recent court decision in Ontario14 has reformulated the definition of marriage as “the voluntary union for life of two persons to the exclusion of all others” to apply immediately. As well, other countries have already accorded in varying degrees equal rights to persons in same-sex conjugal relationships outside of marriage.

Non-governmental organizations

AUSTRALIAN NGOs

Draft article 14
RESPECT FOR PRIVACY, THE HOME AND THE FAMILY

Mr Chairman:

Thank you for this opportunity to address the Ad Hoc Committee.

We support in principle the content of draft article 14 but believe that the subject matter should be divided into two separate articles. One article should deal with privacy and the other, personal relationships.

With respect to privacy we recommend two amendments to paragraph 1:

• First, as footnote 45 suggests, the term ‘correspondence’ should be replaced with the more encompassing term ‘communications;’

• Second, the term ‘medical records’ should be broadened to ‘personal information, including medical records.’ This would ensure that other personal information that cannot be characterized as medical information would also receive privacy protection.

With respect to the home and family we recommend the following amendments:

• First the scope of the article ought to be broadened to encompass all personal relationships, including family relationships, but not limited to them. In this respect, it is our view that the title of the article should also be amended to refer to “personal relationships,” and that the term “marriage and family relationships” paragraph 2 ought to be amended to read “personal relationships, including marriage and family relationships.”

• We believe this convention must contain an explicit prohibition on the sterilization of children and adults with disability for non-therapeutic purposes (by “non-therapeutic” we mean sterilization other than that necessary for therapeutic purposes to save life or avoid serious illness).

Non-therapeutic sterilization, whether ‘forced’ or not, is a violation of fundamental human rights. It is not sufficient to provide protection against forced sterilization, as sterilization of children most often occurs at the request of a parent, as guardian of the child, rather than as a result of State action. In this respect it is ‘voluntary’ rather than coerced. The prohibition on non-therapeutic sterilization must therefore also encompass voluntary conduct by parents and others seeking sterilization of their children. This prohibition might be located in 12 as suggested by some delegations yesterday or article 14.

• The second sentence of sub-paragraph (d) is applicable to both sub-paragraph (d) and (e), and is perhaps of greater significance to sub-paragraph (e). We therefore recommend that this sentence is either relocated to the end of paragraph (e) – which would then encompass (d) as it refers to parents – or established as a sub-paragraph standing alone. We also recommend that the phrase ‘ on an equal basis with others’ is inserted after ‘the rights of persons with disabilities’ to make it clear on what basis this right is to be enjoyed. This is consistent with the approach taken in sub-paragraphs (a) and (c).

• We recommend the deletion of the term ‘against their will’ in the first sentence of paragraph (e). It is not clear whether the term applies to the child or to the parent, or both. If it applies to the child, we are concerned that it may result in circumstances where children can be removed voluntarily without appropriate procedural safeguards, including judicial review.

• We strongly urge against the insertion of the word ‘solely’ in subparagraph (e) as suggested by footnote 50. Disability should never be a justification for the separation of children from their parents – whether it is the child or parent, or both, who are disabled. Where other factors are involved in the decision to separate children, those factors should be the only basis for the separation. There is a risk of creating a loophole that would permit authorities to separate children from parents with disability by relying on a secondary reason that may not in itself be sufficient justification for the separation.

• Finally, we strongly urge the inclusion of a new sub-paragraph guaranteeing children and parents access to legal aid in relation to these rights.

Thank you for the opportunity to make this intervention.

BIZCHUT

Draft Article 14 – Respect for Privacy, the Home and the Family

(a) The provision of appropriate assistance to parents with disabilities

The provision of appropriate assistance to parents with disabilities in the performance of their child-rearing responsibilities is a principle of central importance in the context of respect for privacy, home and the family. However, here it is established in the relatively narrow context of guardianship, wardship, trusteeship and adoption, as noted in clause (d). We suggest, that the principle of appropriate assistance be established as a general one, with regard to all aspects of parenthood and to all parents with disabilities who need it, and not only in the limited context contained in clause (d).

(b) The right to parenthood – unlimited?

(i) The need to anchor the right to parenthood is clear. The question is whether the way in which it is done in the first part of clause (c) is appropriate:

The first part of clause (c) determines the right of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons. Such a determination raises the question whether this right is unlimited. For example: It is clear that sterilization of persons with disabilities should be prohibited. However, should the administering of birth control, or the requirement of a person to take birth control, be forbidden under any circumstances?

We believe the matter should be discussed, taking into account the following option: Along with the right established in the first part of clause (c), the conditions under which the right can be limited will be determined, together with the instruction that the limiting of the right be carried out with proportionality and in accordance with procedural safeguards that appropriately protect the rights of persons with disabilities.

(ii) With regard to the formulation of justifiable grounds for separation of a child from his or her parents (Article 2(e)): In our opinion, the formulation that strikes the right balance between the right to parenthood and the well-being of the child is, that there can be no grounds for separation between child and parents against the parents’ will solely on the basis of the parents’ disability (see footnote 50 in the Convention draft). This formulation is preferable over the existing one, according to which the child shall not be separated from parents with disabilities on the basis either directly or indirectly of their disability. In some situations in which the parents’ disability impacts on their parenting in such a way as to endanger the child, disability may serve as an indirect, albeit justifiable grounds for separation.

EUROPEAN DISABILITY FORUM

Draft Article 14 Respect for privacy, the home and the family

EDF supports the use of the word “communication” instead of correspondence in paragraph 1 of this article.

Also, paragraph 1 should cover other relations, apart from marriage and family.

EDF supports a specific reference to prohibition of sterilisation on the ground of disability in this article.

The wording of the second sentence of paragraph e) needs some reflection and justification. The objective is that a child is not taken away from her/his parents because their parents have a disability. In principle, the first paragraph covers this, but we fear that often misconception, prejudice and low expectations against disabled people will influence the decision. The proposed wording seems therefore an important additional protection.

EDF supports the proposal, mentioned in the footnote, to include the following sentence: “State Parties shall render appropriate assistance to parents with disabilities to enable their children to live with them.”

INDIAN NGO CONSULTATIVE MEETING

Draft article 14

24. Augmentation of draft article 14-c) protecting the interests of disabled women in developing countries from rural areas and urban slums by adding the following text-“special measures should be taken to protect the rights of underprivileged women with disabilities in particular.

Therefore the modified text of the article 14-c) should be read as “the rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children on an equal basis with other persons and to have access to information, reproductive and family planning education, and the means necessary to enable them to exercise these rights, special measures should be taken to protect the rights of underprivileged women with disabilities in particular.”

25. The participants suggest alternative text to draft article 14-e) which should read as- “States parties shall render appropriate assistance to parents with disabilities to enable their children to live with them.”

26. With regard to article 14 para 2, the participants suggested inclusion of “live-in partnerships” in the text. Therefore the modified text of article 14-2 should be read as “States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, live-in partnerships and family relations, and in particular shall ensure:”

27. Some organisations providing services, legal advocacy groups, parent’s associations and self-help lobbies in the field of Mental Retardation and Mental Illness are of the view that the right to marry and parenthood with free consent of two intending spouses should be guided for effective exercise of their marital and parental responsibilities by professionals and experts”

INTERNATIONAL SAVE THE CHILDREN ALLIANCE

Draft Article 14 – respect for privacy, the home and family

This article deals with the rights of people with disabilities to privacy and to family life. We wonder if the title covers the content of this article. One of the issues children and youth with disabilities prioritize is the assumption that parents and caretakers are their spokespersons. Children and young people want parents and caretakers to respect their ability to make their own decisions and begin to be more independent as they grow up.

Additionally we emphasize the need for a coherent prohibition in the convention text to remove children from their homes against the will of parents and or the child, only on the basis of perceived incapacity due to disability.

Suggested changes

Title article 14 – respect for identity, the home and family

14.2 States Parties to this Convention shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage and family relations, and in particular shall ensure:

14.2a ‘the rights of children with disabilities to respect for increasing levels of autonomy within the family in accordance with their evolving capacities’;

LANDMINE SURVIVORS NETWORK

DRAFT ARTICLE 14 COMMENTS

Although Draft Article 14, addresses issues of privacy, paragraph 1 largely reiterates the provisions found in Article 17 of the International Covenant on Civil and Political Rights, without tailoring these rights to the specific situation of people with disabilities. For instance, policies that permit staff in institutions to enter rooms at any time without warning may not be per se unlawful, but nevertheless constitute an interference with the right to privacy. The Ad Hoc Committee may therefore wish to expand upon the provisions related to privacy and interference with family.

Draft Article 14(e) addresses the separation of a child from his/her parents. Although paragraph (e) references the “best interests of the child” standard (Cf. Convention on the Rights of the Child, Article 3(1)), no due process protections are outlined regarding who would implement this standard and how. It should also be noted that although there is an express prohibition on the removal of a child “on the basis either directly or indirectly” of the parents’ disability, there is no express provision prohibiting the removal of a child from their parents on the basis of the child’s disability.

Footnote 50 references the discussion about whether “solely” should be used in place of “either directly or indirectly.” In this regard the Ad Hoc Committee may wish to take into consideration the historic and often systemic bias of many societies against people with disabilities as parents. If the word “solely” is substituted, the provision may not offer sufficient protection against more subtle forms of discrimination against parents with disabilities.

Draft Article 14(f) relates to awareness-raising measures, but seems to employ a lower standard than expressed earlier in the Working Group text. The Ad Hoc Committee may wish to consider whether paragraph (f) should also require States Parties to “undertake to adopt immediate and effective measures,” as per Draft Article 5(1).

WORLD BLIND UNION

RESPECT FOR PRIVACY, THE HOME AND THE FAMILY
Article 14:

“… correspondence” should be replaced with the term “communications”.

Assistance, guides, interpreters of different kinds and independent living must be provided to PWD and included in the text.

In this article it is of extreme importance that PWD maintain the right not to be institutionalised against ones own will.

Obligations for states to find solutions for PWD:s who seek alternative to institutions.

A para on forced sterilisation should be added.

Under (d), it is important that rights, which are given to other parents also are given to parents with disabilities, including support service so as the child may enjoy the same rights as other children.

The right for PWD:s to make choices of their own is important.

The right to self-determination for PWD's is one of the most crucial rights and it must be an acceptable definition on “self-determination

WORLD NETWORK OF USERS AND SURVIVORS OF PSYCHIATRY

Draft Article 14

1. Persons with disabilities, including those living in institutions, shall not be subjected to ADD: discriminatory, arbitrary or unlawful interference with their privacy, and shall have the right to the protection of the law against such interference. States Parties to this Convention shall take effective measures to protect the privacy of the home, family, correspondence and medical records of persons with disabilities and their choice to take decisions on personal matters.

WNUSP COMMENT: WNUSP urges the addition of the term “discriminatory” in paragraph 1 addressing respect and protection of privacy. Particularly in institutions, interference with privacy may be rationalized based on management considerations and thus not considered arbitrary or unlawful, but it is discriminatory because people not relegated to living in institutions are not subjected to such interference. When the particular form of institutionalization disproportionately affects people with disabilities, such practices may also constitute discrimination based on disability.