The Rights to Motherhood and Family of Women with Disabilities and Illnesses
Part 2: In Practice
- Olesia Sadovskaya (Molodechno)
- Natalia Mikhodyuk (Orsha)
- Marina Svetlova-Lebedeva (Vitebsk)
- Ruslan Guseinov (Pinsk)
Introduction
This report continues the topics raised in the previous report (Report #4) regarding the impact of disability/illness on the rights to motherhood/parenthood in Belarus.
In 2016 Belarus ratified the UN Convention on the Rights of Persons with Disabilities (CRPD). Shortly after that, in June 2017, a National Action Plan for 2017-2025 aimed at implementation of the CRPD regulations was enacted. Following the main purpose of the CRPD — to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity – the Plan seeks to achieve, among other things, non-discrimination and gender equality in the country.
Equality between men and women and/or empowerment of women include many things, most of which are not addressed by the NAP in an explicit manner. However, before we even start looking at the issues of gender equality we would like to draw attention to the inequality within the women, namely the inequality between mothers with illnesses/ disabilities and mothers without them. Patriarchal as it is, Belarusian culture and society construct women’s identity, their sense of purpose and life success mostly, if not exclusively, around motherhood, family and children. Thus, attacking the right to motherhood and family of women with disabilities/ illnesses might be detrimental for their identity and sense of life achievement.
In the report #4 we demonstrated how current Belarus’s legislation allows certain violation of the rights of mothers/parents with disabilities. For example, a mere fact of having an illness or a disability is interpreted by the practitioners (representatives of agencies of guardianship, judges, etc.) as an insurmountable obstacle to motherhood (fatherhood) in Belarus. In this report we shall support this statement with real life examples.
Practise: Falling Through the Cracks
To understand how the practice of law allows for the discrimination of parents with disabilities/ illnesses several instances have to be explained. Firstly, the area around parenting of people with disabilities is regulated, mostly but not exclusively, by the following legal instruments[1]:
- a) The Marriage and Family Code of the Republic of Belarus;
- b) Presidential Decree of the Republic of Belarus of November 24, 2006 No.18 “About additional measures of the state protection of the children of the problem families”;
- c) The Regulation of the Ministry of Health of the Republic of Belarus of March 30, 2010 No.36 “Establishing the List of Conditions Incompatible with Parental Functions;[2]
- d) Regulations of the Ministry of Education of the Republic Belarus.
All four are different in terms of legal effect and, so to speak, institutional affiliation. The Code is a national law; the Precedential Decree has the same effect in absence of a national regulation on the matter. Ministerial Regulations have an affect only on the state bodies subjected to the relevant Ministry.
What is important for our analysis is that the state bodies that deal with the initial decision to take the child away from a family and that file a case of involuntary termination of parental rights against the parents are part of the educational departments of the executive authorities, and are within the jurisdiction of the Ministry of Education of Belarus. Why is it significant? Because the interpretation of the norms regulating the parenting rights of the parents with disabilities differ between the Ministry of Health and the structures of the Ministry of Education.
The Presidential Decree No.18 prescribes that children of parents that for some reason do not perform their parental duties properly are the subjects of the state protection (art. 1). Their situation is given a status of being socially ‘menacing’ or ‘hazardous’.[3] As the subject of the state protection they are provided for by the state. The same decree establishes that parents of such children have to reimburse to the state the cost of the care for their children by the state institutions. At the same time, the Marriage and Family Code of Belarus does not differentiate between the children left without parental care due to termination of their parents’ rights, incarceration of their parents, their parents being missing, ill, or legally incapable, etc. (art. 116, para.1). Moreover, if children find themselves in ‘socially menacing circumstances’, as the laws put it, not because of the lack of parental care, they still can be given the status of the subject of the state protection (art.116, para. 3) and thus can be taken away from the family.
This is exactly the position that is taken by the bodies of guardianship and juvenile committees’ — both are the part of the local administrations and in jurisdiction of the Ministry of Education of Belarus.
The ministry of Health of Belarus takes somewhat different approach. In its letter No. 02-1-10/739-350 of November 11, 2015 it clearly states that children can be recognised as in need of the state assistance and their situation as socially hazardous solely on the ground of lack of parental care, and not because of an illness or disability. Moreover, the List of Conditions Incompatible with Parental Functions can be employed only to the parents who are already recognised as the ones not performing their parental duties.
This reverses the logic from ‘if one is ill/disabled, one should not be performing parental functions and the children should be taken away’ to ‘if one is does not perform their parental duties and their child is in a socially hazardous situation, which resulted in the child being taken away, and it turns out that the parent has an illness indicated in the List, then such parent should not pay the costs of the child being in the state institution’. In the end the only difference the illness or a disability makes is whether parents with an illness have to pay for their children being cared for elsewhere.
The letter is clear: any disease can cause a temporary lack of parental care and what has to be taken into account, when making a decision on such cases, is material conditions of the child’s life, actual state of health of the parent, provision of help from other family members and community in child-rearing. Moreover, the letter of the Ministry of Health refers to the Ministry of Education Instruction No. 47 of July 28, 2004 (with amendments of June 25, 2011) that states exactly the same principle: an indicator of the socially hazardous situation is lack of care, which may be caused by an illness, but not the illness itself. Moreover the Ministry of Health recommended some changes in the Family Law Code.
Unfortunately, these recommendation and comments of the Ministry of Health has no mandatory effect on any of the bodies in the jurisdiction of the Ministry of Education of the Republic of Belarus. Agencies of guardianship continue treating parents with disabilities and illnesses as legally incapable people which is in line with the official position of the Ministry of Education itself. Galina Rudenkova, a high profile representative of the Ministry of Education, responsible for ‘protection of childhood’, articulated the position of the Ministry: according to the Family Code, if a parent of a single-parent family has an illness incompatible with parenting, a doctor has an obligation to inform the social services. According to the law, children of such parents are seen as in need of state protection and need to be taken away from the family.[4] This is exactly the logic the agencies of guardianship employ: in single parent families the very fact of an illness is a ground for the parent to lose their parental rights. Sadly, if we look at the statistics of the single-parent households, we see that most of them are single-mother families.[5] This how it works for some of the families we interviewed.
Cases
Olesia Sadovskaya (Molodechno)
The case of Olesia Sadovskaya is a complex one and encompasses a number of violations of human rights. Olesia’s story starts with her disagreement with police officers on their work duties. Followed detention, beating, torture, illegal placement in a psychiatric hospital, first for an examination and later for forced treatment, criminal case against her, and seizure of her daughter, K., and placement of K. to an adoptive family were the ways how the state officials punished Olesia for her indocility. We shall come back to Olesia’s case in full in one of the future reports, but what is important for the purposes of this report is the legal ground for K. to be taken away from her mother. Olesia is a single parent, when she was placed in a mental institution she was diagnosed with an illness listed in the List of conditions incompatible with parenthood. Although Olesia managed to prove later that her diagnosis was wrong through an independent expertise outside Belarus, her daughter was taken away from the family just on the grounds of her condition. It was only after one year and four months of court hearings, official complaints, media campaign organised by ‘Our House’, and Olesia’s traveling the country and abroad for an independent expertise that K. returned home.
The case against Olesia was filed by an agency of guardianship (the department of education) solely on the ground of the diagnosis of Olesia as a single mother. The prosecutor office supported the case. In the process of the court hearing by the court of first instance, Olesia’s lawyer insisted that this ground is illegal; then the court obliged the social service to provide other grounds for the claim and the former were quick to announce that K’s living conditions put her in the social danger. The court took the side of the representatives of the executive power. Olesia filed a case on appeal; the court of appeal and prosecutors in Minsk now took Olesia’s side. After being with adoptive families and at children’s home from March 2015 until late June 2016 K. could return to her mother.
Natalia Mikhodyuk (Orsha)
Natalia is a mother of three boys. Two older sons, twins, are, as they say, difficult children and diagnosed with mental and physical disorders. When children were taken away from the family, the two older sons were ten and the youngest boy was five years old. Her problem was that she had a condition she did not know about until the state representatives’ decision to take her children away, a condition that was listed in the notorious List mentioned above.
Natalia’s story starts in autumn 2015, the day her husband came home tired after work, had some beer and overreacted to a fight amongst the oldest children. As he tried to calm them down and the conflict escalated he took a handbag’s strap and lashed at both boys. Natalia, who entered the room at the screams got scared, left the room, took the youngest boy and called the police. The father himself later absolutely supported his wife’s action in this situation. As a result the father was detained for fifteen days and a case was filed against him to terminate his parental rights. As he lost his parental rights, his wife became a single mother and was forced to undergo a medical expertise per the List of the Conditions, making parenting impossible. The test she was made to take showed that her IQ is one point below the ‘normality’: she scored 68 at the ‘norm’ 69. Thus she was diagnosed with a light form of intellect deficiency. One point is a negligible difference and the doctors did explain why they decided to ‘give’ her this condition. Officially it was because she studied at a school for children with learning difficulties, which placed her on the books of individuals with intellectual deficiency. Being on the books meant she could not possibly be ‘normal’ or ‘fit for motherhood’. This came as a complete surprise to Natalia, who never knew she was on any kind of list. Unofficially though, the medical stuff told to Natalia that they did it for her, so that she could be freed from the mandatory payment to the state.
Whatever the reason the medical committee had, the condition she was diagnosed with was the main reason the court supported the case against Natalia and took her children away. Other reasons included a worry she cannot protect or take care for her children because of her intellectual incapability. This is completely overlooking the fact that it was her who called the police to protect the children and it was her who cared for two children with serious disabilities for ten years.
During the court hearings, consultations with the Juvenile Committee and guardianship services, another issue was indicated as an obstacle for the children being returned to their mother: Natalia’s unemployment. This is rather cynical, because Natalia’s job was to be the care-giver to her two oldest sons, who needed special care. Not only were the children taken away from the family, making her to lose her job, Natalia was not allowed to continue to be their care-giver. There is no legal provision for parents with conditions listed in the List to continue providing care to their children, and because of Natalia’s official diagnose she cannot be officially hired to be a care-giver to her sons with disabilities.
Marina Svetlova-Lebedeva (Vitebsk)
Marina has a second-degree disability, she is visually and hearing-impaired. She has three children, two sons and a daughter. She also is taking care for her brother who has a first-degree sight disability. The story of her motherhood is rather difficult and the list of her rights violations is long. Again, for the purpose of this report we shall concentrate only on some aspects of it, but shall return to some other aspects later.
When the youngest child was born (in 2003) doctors strongly recommended Marina to undergo female sterilisation. Later she was also recommended by paediatricians to leave the baby in the hospital. Marina did struggle at the time: her mother died the same year; she had to work at night and take care of two other children as well as of the brother with a disability. After about six months, as she told us in her interview: “everybody [paediatricians] told me I won’t manage’. At this point, after being assured she will be able to see the child, she decided to seek help and temporarily brought the youngest child to the children’s hospital, to allow her a bit of time to build her life with the other two children. While the child was in the institution she was not allowed to see him, seven months later she managed to take the child back. Soon she encountered another problem, she could not control the eldest son, who started to run away from home and once suffered a cold injury. At this point she got scared for the child’s life and safety, and again requested help from the social services. In 2007 the boy was taken to the children’s home and was diagnosed with a mental disorder.
Marina’s serious problems with the body of guardianship started when her daughter was treated unfairly at school by her teacher (which was later proved and admitted by the school). As the conflict escalated Marina started to visit the department of education requesting the conflict to be resolved. There she heard from one of the representatives of the authority that she will regret causing them so many troubles. In 2010, without any warning, the two remaining children were taken from her. Not only she was not informed about the decision, the son was taken from the nursery, the daughter was visiting her friend and was taken from there.
The court decision cites the following reasoning for the children to be taken away: a condition of their single mother that is listed in the List of illnesses incompatible with parenting duties, unpleasant odour in the apartment, insanitary conditions, and illnesses of children. It is not clear what illnesses the court refers to, but the youngest son is also recognised as a person with disability. Moreover, later elaboration of what was wrong with the apartment included: old furniture, not enough furniture (not enough beds, mother and daughter shared the bed), not enough working spaces for children (no desks just a table to use for homework), old wallpapers, not freshly painted floor. This ‘flaws’ were caused mostly by poverty, not by disinterest in tidiness.
As Marina puts it:
“There were court hearings, in the opinion of the guardianship body it was not appropriate to give me back my children. This despite good reference letters from work, I never broke any rule… no labour discipline, nothing… I work since I was 16 with no breaks, for 26 years. 27 this year. I don’t smoke, I don’t drink [alcohol]. My only fault is that I don’t hear that well, that I see badly. And also that I was a trouble for someone… These are the only things I’m guilty of. And now this anger… I don’t know why they hate me so much, I can’t tell!”
If that was not enough, Marina never had it explained what it all meant for her legally. In fact, she was told by the civil servants that her parental rights were terminated. This is regarding all three children. She was so sure of that, that she never questioned it. She never asked for papers proving it, until couple of years later someone suggested she should check that. When she went to the judge to inquire, it turned out that not only her parental rights were kept (children were only temporary taken into the state care) but she had a right to claim the children back. This she tried in 2014, and still keeps trying. It is not relevant for this report to describe the great length she went to to retrieve her two children. What should be stressed is that, in addition to anything she has to do to prove herself a worthy mother, she has to undergo an annual medical check to be qualified for parenthood at all on the grounds of health.
Ruslan Guseinov (Pinsk)
The first three cases described here have started before the CRPD was ratified by Belarus. Ruslan Guseinov’s case demonstrates that neither ratification of the Convention, nor enacting of the National Plan of Action changed the mind-set and practice of the guardianship agencies.
Ruslan is father of a daughter who was in legal custody of her mother and Ruslan’s ex-wife, and was taken away from her mother after involuntary termination of mother’s parental rights. Ruslan made an attempt to become a custodial parent and take the daughter from the state care.
In order to return the daughter, the guardianship agency issued to Ruslan an Agreement about eliminating the conditions that caused the child being taken away from the family. One of the conditions listed in this document, compulsory for parents, is to provide a medical certificate proving absence of a disability or/and illness incompatible with their functioning as parents. This was happening in May-June 2017.
As a ‘healthy’ individual Ruslan had no reason to be sent to the medical committee and most likely was given a standard document. This means that guardianship agencies always see disabilities/illnesses as a cause and a ground for a child to be taken away, and having a medical check as a necessary condition to be granted parental rights.
Conclusion
The results of our monitoring in this area demonstrate that, despite the ratification of the UN Convention on the Rights of Persons with Disabilities by Belarus:
- There is no appropriate legal base to prevent discrimination of mothers/parents with disabilities or illnesses when it comes to their parental rights and assessment of their parental performance;
- Even when certain regulations allow space for pro-parental approach towards interpretation of the norms regarding the individuals with disabilities, state representatives prefer to see their parental care as inadequate and their children as at risk of being denied a caring and protective environment;
- The mere fact that an individual has a condition or/and a disability is grounds for the state representatives to launch a procedure of involuntary termination of parental rights. In this cases, state bodies often overlook such factors as material conditions of the child’s life, assistance of other family members or community support, mother’s previous success in child-rearing or her motivation;
- Parents with disabilities are legally treated exactly the same as parents that lost their parental rights due to neglect of their care-givers duties and for endangering children. This not only stigmatises parents and their children but also restricts their rights;
- The fear to be ill (or being recognised as a sick person) leads to many parents hiding this information, which leaves them without any support and little medical assistance.
Sources of information:
interviews with parents with disabilities, official documents (official responses of public servants, social services’ resolutions and agreements), media publications, comments of lawyers and human rights activists.
The report is prepared by: Evgenia Ivanova
With the assistance of Elena Kashina,
Natalia and Aleksandr Mikhodyuk,
Marina Svetlova-Lebedeva,
Olesia Sadovskaya
[1] This is apart from the international norms and of the norms of the Constitution of the Republic of Belarus.
[2] This regulation replaced the previous list established on August 19, 2005.
[3] Социально-опасное положение (Sotsialno-opasnoe polozhenie).
[4] http://www.aif.by/press-centr/articlpress/otobrat_rebenka_u_roditeley_mozhno_po_prichine_psihicheskogo_rasstroystva_
[5] In 1999 there was: mothers with children constituted 13.1% of all the families, father with children constituted 1.2% of all the types of families in Belarus; mothers with children and one of the grandparents – 1.4% and fathers with children and one of the grandparents – 0.1%