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Back to: Third Session | Draft Article 14 Comments on the draft text Download complete compilation of comments: MS Word National Human Rights Institutions Ontario Human Rights Commission 14.2; Footnote 46 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 Ontario1 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. 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 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.” 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.” 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:” 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” 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). “… 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 1. 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. Footnotes Footnote 1: Halpern v. Attorney General of Canada, Ontario Court of Appeal, June 2003. The Attorney General of Canada did not seek leave to appeal. Instead it submitted draft legislation legalizing same-sex marriages to the Supreme Court of Canada for a reference, opinion pending. |