Cuba has always advocated respect for human dignity as the supreme value that supports the recognition and exercise of the rights and duties of all people; so much so that the Constitution provides the basis for regulations that favor the full development of people with disabilities.
In this sense, our country defends two essential values: freedom, which is expressed in the autonomy of people to make their own decisions in their personal lives, and equality and non-discrimination, principles that were already present in the 1976 Constitution, and were expanded in the 2019 Constitution.
As explained to Granma newspapers by Caridad del Carmen Valdés Díaz, PhD and full professor at the Law School of the University of Havana, Article 42 of our Constitution expressly states that people cannot be discriminated against because of their disability, among other reasons.
Furthermore, she added, Article 89 reinforces this principle and clarifies that they enjoy equal rights as the rest of the population; therefore, the State, the family and society must work to achieve their social inclusion and the free development of their personality.
Valdés Díaz defined a person with a disability as a person who, due to a different functional capacity (whether sensorial, cognitive or physical-motor) of a temporary or permanent nature, interacts with different barriers present in his or her environment that impedes or restricts his or her full and effective participation in society.
Everything we defend in terms of equality is in perfect harmony with the International Convention on the Rights of Persons with Disabilities -of which Cuba is a signatory-, which states that all people can exercise their rights, that their wills and preferences are respected, and that their possibility of acting in any type of legal act is not restricted.
Even though the Family Code of 1975 treated disability using terms such as "incapacitated" or "incapable," which were the terms used at that time in most international legislation, it did establish recognition and protection for persons in this type of situation.
In line with this, the new Family Code defines important criteria, such as that these persons have the right to decide freely and responsibly the number of offspring, the way of having it and the time that should elapse between one birth and another. It is the responsibility of the family to collaborate, guide and inform them appropriately.
For a long time, there has been a tendency to consider that people with disabilities have no possibility of developing a sexual and reproductive life, and this is another of the myths that the new regulation dismantles.
Likewise, the Code states that they can have access to information on sex education and family planning issues appropriate for their age in the case of children or adolescents, and that they should be offered the necessary means to enable them to exercise this right.
On the other hand, the regulation, which will soon be submitted to a popular referendum, also establishes the modifications that must be made to the current Civil Code, since in the current regulations there are limitations for these causes in the exercise of capacity.
For example, if a person with a mental illness goes before a notary, and the latter considers that he/she does not have sufficient aptitude to understand the scope of the acts he/she is going to perform, he/she abstains, and then the person cannot act. If the situation is more serious, it is the court that determines whether the person has the status of incapacitated and needs a representative, that is, appointing a guardian.
“The changes included in the Family Code seek to provide the people with motor, sensory or psychic disabilities with the possibility of exercising their rights as any other person, in absolute equality,” the professor said.
FROM THE FAMILY CODE TO THE CIVIL SPHERE
According to Caridad del Carmen Valdés Díaz, PhD, the Civil Code may establish the rules that allow persons with disabilities to exercise their rights under equal conditions, establishing the pertinent reasonable adjustments, naming the necessary supports and always considering their wishes and preferences.
Regarding the establishment of support and safeguards for guardianship, she said that the new Family Code states that the support can be designated by the person with a disability, which is already an implicit recognition of their attitude of being the protagonist of their own life and determining who is the person who can support them in the best way, said the specialist.
In addition, the provision specifies that the person who has support is responsible for their decisions, including those made with such support.
On the other hand, it specifies that the safeguards are measures to guarantee respect for the rights, will and preferences of the person receiving support, to prevent abuse and undue influence, as well as to avoid affecting or jeopardizing the rights of the persons assisted.
In order to avoid that the person providing support oversteps their actions and do not respect the preferences and rights of persons with disabilities, the person requesting the support, in the notarized public deed in which they have designated said support, or the competent court, establishes the safeguards they deem appropriate and the deadlines for the review of the supports, the Code states.
Another novelty is the introduction of two institutions for guardianship and protection in the family sphere: de facto guardianship and foster care. In both cases, the aim is to guarantee greater and more efficient care for the person with disabilities, facilitate their integration, respect their right to live in a family and avoid their internment when this is not appropriate or desired.
Finally, the professor of the Faculty of Law of the University of Havana, indicated the need for a much more detailed regulation, and that in the new Civil Code, which establishes the regulations for a not so distant future, all issues relating to who can act as support for a person with disabilities, the ways to appoint them, and how to ensure that the will of people in this situation is explored and their wishes and preferences are taken into account, should be strengthened.
Such issues require a more detailed look at what is seen in the draft Family Code, transferred to the property and personal spheres in which they have to find ways for the exercise of their rights on equal terms, he concluded.
