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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
Fourth session of the Ad Hoc Committee - Daily Summary
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Volume 5, #5
August 27, 2004

MORNING SESSION

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

Bahrain reiterated its proposal from AHC3 to delete “adoption” in 14(2)(d), and supported the proposal of Syria and Qatar to instead use “guardianship,” which would better correspond with its national legislation.

Costa Rica reiterated its proposal from AHC3 that Article 14 be divided into two articles: 14 entitled “Respect for Privacy” as proposed by South Africa, and 14 bis entitled “Respect for Home, the Family and Intimate Relations.” Article 14 would, as proposed by the EU, address “private life” rather than “privacy,” and also “communication, information and documents,” as proposed by Costa Rica. Article 14 bis would address family and intimate relations, which require more attention. Given Costa Rican legislation, it is essential to refer to marriage. It must also be understood that issues of sexual and reproductive health do not include abortion, as life begins at conception in Costa Rican law. It supports Argentina’s proposal to refer to “appropriate measures” in 14(2) as well as the Israeli proposal including “in accordance with national legislation” in 14(2)(a). It supports Canada’s replacement of “full” with “informed” consent in 14(b). Costa Rica repeats its request for both “fatherhood” and “motherhood” to be used in the Spanish text where “parenthood” is used in the English. New Zealand’s proposals to include the best interests of the child are important, though it is unsure of also including references to the best interests of the woman. Cost Rica welcomes the EU proposals, though provision of State assistance to parents with disabilities to help them carry out their obligations as parents could be considered discriminatory, and something that should be provided to all parents and not just PWD. To facilitate discussions Costa Rica would be prepared to withdraw its proposed 14 (b) bis.

Chile supported the Qatar proposal to add a reference in 14(1) to “unlawful attacks on his or her honor and reputation.” In 14(2)(d) it supports New Zealand in stating “in all cases the interests of the child shall be paramount.” In 14(2)(e) it supports Jordan, Morocco, Thailand and Saudi Arabia, in ensuring the decision to separate a child from its parents be subject to periodic review. The proposal of Qatar at the end of 14(2)(a) addressing the situation of women and girls should be incorporated into 14(2)(f). Wherever “parenthood” is used in the English text, “motherhood” as well as “fatherhood” should be used in the Spanish.

Canada supported inclusion of issues of sexuality, marriage and parenthood. Proposed amendments addressing stereotypes and negative attitudes should be moved to Article 5. In 14(1) references to those living in institutions should be deleted as 14 applies to all PWD. References to medical records may be better placed in the article on health. Canada would prefer removal of programmatic detail in 14(2), but would not support the Holy See’s proposal to delete 14(2)(a), (b) and (c) and replace these with a short paragraph focused on marriage. Canada also opposes the proposals of Syria, Qatar, Libya, Saudi Arabia, Yemen and others seeking to “roll back” language on sexuality through references to “legitimate marriage” or “religious and social conventions.” Canada’s focus is to retain language consistent with the Cairo outcome document of 1994. In 14(2)(b) Canada thanks Costa Rica for its support of “informed” consent, and supports the Chinese proposal to replace “men and women” with “persons,” which is more consistent with paragraph 7(3) of the Cairo outcome document which refers to “couples and individuals.” It supports the EU’s re-drafted 14(2)(d) and (e), save for the last sentence on stereotyping which should be moved to Article 5. Canada supports the initiatives of the EU and New Zealand to introduce the concept of the best interests of the child.

Venezuela supported Argentina’s proposal adding “appropriate measures” in 14(2). In 14(2)(b) it supports the proposals of China to refer to “persons with disabilities” and to use “on an equal footing.” It also supports Costa Rica in developing intimate relationships “including marriage,” and India’s reference to “appropriate laws.” In 14(2)(c) it supports Mexico’s ban on forced sterilization, and Yemen’s reference to “reproductive sex.” Costa Rica supports the deletion of “solely” on the basis of disability in 14(2)(e), and Uganda’s proposal for provision of assistance to parents with disabilities. It supports the EU proposal for 14(2)(f), but would like to see a sentence addressing the need to counter negative stereotypes that challenge the right of PWD to adopt.

Botswana endorsed South Africa’s proposed title, “Respect for Privacy.” It supports use of “communication” instead of “correspondance” in 14(1), and the proposal of the Holy See in 14(2)(c). Given that concepts of marriage and family differ between cultures, and thus should be defined in Article 3.

Eritrea noted the challenges faced by PWD, particularly women with disabilities, in enjoying the right to form families. Eritrea supports 14(1) as amended by Kenya and Japan, and 14(2) as amended by Qatar. It supports 14(2)(a) and (b), without disregarding some cultural sensitivities on these matters. 14(2)(d) should retain “adoption.” It supports 14(2)(e) as amended by Uganda to include assistance for parents, and 14(2)(f) as drafted by the Working Group.

Australia supported proposals to split the article in two, as the right to privacy is distinct from other rights referenced in Article 14. Australia’s proposal is available at: http://www.un.org/esa/socdev/enable/rights/ahc4da14.htm 14(2)(f) should be placed in Article 5 and so is not included in the Australian proposal. Where decision-making about children occurs, the best interests of the child standard must be used.

New Zealand supported retention of the Working Group text, with minor amendments such as use of “communication” and “private life” in 14(1). It supports the structural amendment of the EU to make sub-paragraphs 14(2)(d) and (e) new paragraphs (3) and (4), retaining the New Zealand addition of “and in all cases the interests of the child shall be paramount” in new (3) – an addition incorrectly reflected in 14(2)(a) of the Compilation document. It does not support adding “in accordance with national legislation,” as this phrase would negate the utility of an international instrument. New Zealand does not support addition of qualifications on the right to marriage, as this would lead to PWD have lesser rights than others. 14(2)(f) should be deleted as it is covered in Article 5. References to sexuality, sexual and other intimate relationships must be maintained. Such references are not found in other human rights conventions, as enjoyment of the opportunity to have such relationships has not been denied to other groups, but it has been systematically denied to PWD. A “guarantee for this very basic element of human existence is very essential in this text.”

Mexico supported retention of the text with minor amendments. It is flexible on the title, as long as it is broad and consistent with the contents of the article. In 14(1) there is need for breadth and reference to “different kinds of communication.” 14(2) should be broadened to refer to “their private life including” marriage etc. Mexico has concerns about proposals qualifying marriage in 14(2)(a), as the provisions should be consistent with established rights and the Cairo outcome document. Similarly 14(2)(b) should not include qualifications on the right to found a family, and Mexico proposes, “the right of persons with disabilities to establish intimate relations, including marriage, to develop them fully and to found a family on an equal footing with other persons.” In 14(2)(c) references to forced sterilization, determination of number and spacing of children, and family planning, must be retained. It endorses the proposals of the EU and New Zealand in 14(2)(d). References to elimination of prejudice and stereotypes should be retained but moved to Article 5. Mexico withdraws its proposal to submit a new paragraph at the end of 14.

Japan expressed continuing support for “correspondence” in 14(1) as being most consistent with Article 17 of ICCPR, and inclusion of “equally with other persons” to clarify that the article does not create new rights. 14(2)(a) could be simplified to “Sexuality of PWD should be respected on an equal basis with other persons,” to avoid controversy but still address this important issue. It supports the text as drafted in 14(2)(c), (d) and (e), and deletion of 14(2)(f).

Thailand supported the statements of Canada and New Zealand regarding 14(2)(a) and (b), as some of the proposals would create undue restrictions on PWD. To address concerns of some delegations Thailand proposes in 14(2)(a) to delete “equal” and add “on an equal basis with others” at the end of 14(2)(a) and (b). It supports the Mexican proposal for 14(2)(c), with retention of “retain their fertility” proposed by Thailand at AHC3. In 14(2)(d) there is no need to put emphasis on the best interests of the child, as that is sufficiently addressed in other conventions, and concerns could be addressed by including “on an equal basis with others.” It supports Uganda’s assistance for parents in 14(2)(e), and the deletion of 14(2)(f).

Holy See [no intervention taped]

China reiterated its proposal for 14(2)(b) to use “persons with disabilities” and to add “on an equal basis with other persons.” References to “intimate relationships” should be deleted in view of potential controversy surrounding their inclusion, “particularly for Islamic countries.” It supports 14(2)(c) as drafted, and especially the retention of “on an equal basis with other persons.”

United States supported the deletion of 14(2)(a) and (b) and replacement with language submitted by the Holy See at AHC3. However, 14(2)(c) must be retained, as it provides important protections of equality for PWD regarding parenthood and access to information and education on family planning.

Kenya supported New Zealand’s proposal for including “retain their fertility” in 14(2)(c), which represents a positive approach to the issue of forced sterilization. It supports South Africa’s proposals for the chapeau, and Australia’s proposal to split the article.

Yemen reiterated its proposals from AHC3, stressing the need in 14(2)(a) to reference customs and traditions. It supports protections against forced sterilization suggested by Kenya, Costa Rica, Mexico, Thailand, Serbia and Montenegro. PWD must have the right to decide freely on the number and spacing of their children. It supports Bahrain in the addition of “guardianship” in 14(2)(d). In 14(2)(e) it supports the right of disabled parents to raise their children and the provision of support proposed by Argentina and Uganda. It also supports the Qatar proposal to delete 14(2)(f).

Qatar supported the proposal of Bahrain and Yemen to change “adoption” in 14(2)(d) to “guardianship.”

Serbia and Montenegro echoed Canada, New Zealand and Mexico on need to retain the text as drafted, and ensure consistency of language with existing human rights treaties. In 14(1) it supports the EU and Argentina on use of “private life,” and Mexico on “different kinds of communication.” It supports Mexico on inclusion of private life in 14(2)(a), and New Zealand and Thai proposals regarding retention of fertility in 14(2)(c). In 14(2)(d) and (e) it supports the EU proposal available at: http://www.un.org/esa/socdev/enable/rights/ahc4da14.htm with use of “persons with disabilities” rather than “disabled persons” which may be a typo. 14(2)(f) should be deleted or moved to Article 5, though it is flexible if other delegations feel it should be retained.

AFTERNOON SESSION

Malaysia supported the amendments in 14(2)(a) by Libya and Saudi Arabia to add “within the framework of legitimate marriage,” and Yemen’s proposal to mention religious and social conventions and traditions.

Namibia addressed concerns of those who oppose inclusion of concepts such as intimate relationships on the grounds that they do not appear in other conventions. Many issues of importance to PWD are not addressed in other human rights conventions and so must be included in this treaty. Namibia supports inclusion of “all forms” of family relations proposed by South Africa in 14(2). Issues of discrimination against women with disabilities during pregnancy should be included in 14(2)(a). It supports Uganda’s proposal on assistance for parents in 14(2)(e)

Russian Federation wanted to correct the language of their proposal for 14(2)(d) contained in the Compilation document. “Exclusive” and “specifically” should be deleted, and it should read “national legislation” not “national legislations.”

Lebanon stressed the importance of including clear references to the principle of equality. Lebanon proposes to add in 14(2)(d), “that all decisions concerning adoption and other forms of guardianships, while necessarily preserving the best interests of the child, should be always taken on an equal basis with others.”

Nicaragua supported the inclusion of provisions elaborating the right of PWD to establish a family. It is important to have a paragraph that clearly reflects the right of PWD to marry.

The Chair opened the floor to NGOs.

The Disability Caucus noted that the WG draft text provides a good basis. It has prepared a revised draft of Article 14 available at: http://www.un.org/esa/socdev/enable/rights/ahc4idcupdate.doc. This draft includes a new paragraph ensuring the right of PWD to select and control personal assistants who may be needed in their homes. Caregivers should not be allowed to restrict the rights of PWD. The Caucus also proposes a new paragraph addressing adult PWD who live with family members, ensuring provision of adequate support to achieve the full inclusion and protection of rights of those PWD. Although the Caucus appreciates the motivation for singling out people living in institutions in 14(1), doing so necessarily implies the existence of institutions in the future. It is preferable to use wording that ensures application of the article to all PWD, regardless of the individual’s circumstances. The Caucus appreciates the EU’s deletion of “solely” on the basis of disability from its AHC3 proposal. In 14(2)(e) the best interests of the child language may be too extensive. One issue not addressed in any draft is the situation where non-disabled parents are given preferential custody over children following divorce from a spouse with disabilities. PWD should not be discriminated against in this manner.