Do persons with disabilities have the same rights as others to marry, have children and raise those children?

Explanation

In detail

Summary

Answers show that socio-cultural stigma is very common especially among women with physical and/or intellectual disabilities in developing countries, suggesting the importance of considering the relationship between gender and disability. –example: restricted custody of children. Generally, 51% of respondents agreed there are no obvious legal restrictions, but the 33.4% who claimed the rights of people is somehow restricted, highlighted indirect barriers such as:

  • Socio-cultural and gender stigma: Women who have disabilities are the greatest recipients of social exclusion- no strategies available from government or NGOs to support. There is a great deal of stigma or social influences discouraging marriage among PWDs
  • Marrying is often legally allowed but having children is very often discouraged due to fear of violence from the parents. Custody of children often becomes a difficult subject to
  • Lack of decision making power: Caregivers and family relations dependencies and social services restrictions
  • Intellectual disability issues and capacity to make decision (main issue in all the countries) represent an institutionalisation barrier: Marriage consent, contract signing issue- need to be back by supportive administrative documents in some countries in order to sign marriage contracts.
Comments

“Legislation does not prohibit marriage or having children, however family and caregivers sometimes restrict such.” (Colbert Ashby, President, Barbados National Organisation Of The Disabled, Barbados)

“in theory all disabled people have these rights. In reality many people with intellectual disabilities are under some kind of guardianship and need permission to marry.” (Peter LAMBREGHTS, policy officer, regional coordinator, Onafhankelijk Leven vzw / ENIL, Member of DPI, Belgium)

“[…] exclusive for persons with intellectual disabilities, who are not legally restricted but in practice, often restricted by social services, etc”. (Tara Brinston, Canadian Association for Community Living, Canada)

CRPD Article

Article 23: Respect for Home and the family

“1. States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others, so as to ensure that:

a) The right of all persons with disabilities who are of marriageable age to marry and to found a family on the basis of free and full consent of the intending spouses is recognized;

b) The rights of persons with disabilities to decide freely and responsibly on the number and spacing of their children and to have access to age-appropriate information, reproductive and family planning education are recognized, and the means necessary to enable them to exercise these rights are provided;

c) Persons with disabilities, including children, retain their fertility on an equal basis with others.

2. States Parties shall ensure the rights and responsibilities of persons with disabilities, with regard to guardianship, wardship, trusteeship, adoption of children or similar institutions, where these concepts exist in national legislation; in all cases the best interests of the child shall be paramount. States Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.

3. States Parties shall ensure that children with disabilities have equal rights with respect to family life. With a view to realizing these rights, and to prevent concealment, abandonment, neglect and segregation of children with disabilities, States Parties shall undertake to provide early and comprehensive information, services and support to children with disabilities and their families.

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. In no case shall a child be separated from parents on the basis of a disability of either the child or one or both of the parents.

5. States Parties shall, where the immediate family is unable to care for a child with disabilities, undertake every effort to provide alternative care within the wider family, and failing that, within the community in a family setting.”

(UN Convention on the Rights of Persons with Disabilities)

Article 19- Living independently and being included in the community

“States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:

a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;

b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;

c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.”

(UN Convention on the Rights of Persons with Disabilities)