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Back to: Third Session of the Ad Hoc Committee
Daily summary of discussions

Daily summary of discussions related to Article 14

UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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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.

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