Marriage – a right or a privilege…?
“In my mind, there’s nothing our generation should be more ashamed of than people with severe mental illness being punished for a disease they can’t do anything about.” Fran Quigle
Moldova stalled in archaic laws and practices regarding persons with disabilities and mental health. An example of such abusive practices can be the outrageous attitude towards people with mental illness and the doctrine of “medical necessity”, meaning that state can legally limit someone’s rights and freedoms due to a medical necessity. This led to isolation of mentally ill persons from the society. Being designed as an exceptional measure, isolation of people with mental illness became a rule, a status quo.
In Moldova, this kind of practices are applied even though the Parliament ratified in 2010 the United Nation’s Convention on the rights of persons with disabilities (CRPD). Convention guarantees the rights to equality (Article 5), equal recognition before law (Article 12), independent life and social inclusion (Article 19) and right to respect for home and the family (Article 23) of people with disabilities.
Isolated persons live in special institutions that provide either social services (residential institutions) or psychiatric assistance (neuro – psychiatric facilities). They are extremely vulnerable to different types of abuses due to their powerlessness and total control of other persons - usually their legal guardians and/or medical staff. As a result, mentally disabled persons can’t actually control their lives and make their own choices.
One of the constraints refers to marriage which is guaranteed by almost all international treaties on human rights like Universal Declaration of Human Rights (Article 16), International Covenant on Civil and Political Rights (Article 23) or European Convention on Human Rights (Article 12).
Most of the people with mental disabilities are deprived of their legal capacity and denied completely the right to marriage. Ministry of justice elaborated a draft law regarding mental health to comply with CRPD standards. Unfortunately, the draft law maintains old paradigms and deprivation of legal capacity.
To ensure the right to marriage for persons with mental disabilities, Ministry of Justice proposes to establish a special commission which will examine requests of marriage and will decide whether to permit or not. From my prospective, a commission that decides if a person deserves to be married or not is discriminatory and offensive. It is not clear what will be the criteria? Who is entitled to decide? How can be evaluated if a person deserves to marry or not? What will happen if the person decides to divorce?
In the same time we have to admit that persons with mental illness are in a different situation due to their powerlessness and vulnerability so there should be a special approach regarding their life in the community. A relevant solution is given by the Committee on the Rights of Persons with Disabilities. In its General Comment nr.1, Committee explains that in order to ensure inclusive participation in social processes the regime of substitute decision-making should be replaced by supported decision-making, which respects the person’s autonomy, will and preferences.
In other words this means that state should provide a mechanism that would ensure assistance for persons with mental disabilities in some areas.
Applying this standard to the right to marriage, people with mental illnesses could equally enjoy this right being assisted, if needed, in the decision making process by a special person or authority, avoiding the substitution of decision making regime.
To implement this provisions and mechanisms, Moldova needs a new law regarding mental health, but more than that Moldova needs a change of attitude. Our authorities are already on the right way as they understood this necessity but it is time to stop making half steps and wrong steps. It is time to stop fear the change and bring in our society a new paradigm, based on mutual respect, understanding and acceptance. There is no need to invent one, Moldova already ratified CRPD standards. At the end of the day, all we need to do is understand this standards and apply and I truly believe it is not that hard.
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