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Prohibition to marry for persons with intellectual or mental disabilities: HFHR sends opinion to Constitutional Tribunal

The Helsinki Foundation has presented a legal opinion to the Constitutional Tribunal, discussing the international human rights standards regarding the exercise of the right to marry by persons with an intellectual disability or mental disorders. The opinion was prepared for a proceeding pending before the Constitutional Tribunal upon the motion of the Commissioner for Human Rights.

Pursuant to the Family and Guardianship Code, persons “suffering from a mental condition or deficiency” may not legally enter into a marriage. This rule is subject to an exception: a court may authorise such a marriage provided that a person’s physical and mental condition do not pose a risk to marriage or the health of children to be born from the marriage. However, regardless of anything else, such an authorisation cannot be granted to a person who is legally incapacitated to the full extent. These regulations has been subject of a constitutional complaint submitted by the Commissioner for Human Rights to the Polish constitutional court on the grounds that they violate the constitutional guarantees of protection of human dignity and the right to privacy and family life.

In its opinion the HFHR noted that although the Polish Constitution does not explicitly provide that individuals have the freedom to marry, this freedom is obviously a universally recognised human right. “At this point, we referred to Article 12 of the European Convention on Human Rights, which awards every adult the freedom to marry, and also pointed to the case law of the US Supreme Court, which ruled that this right is a constitutionally guaranteed human right, already in 1960s”, says Marcin Szwed, member of the HFHR legal team.

The HFHR has underscored that many countries have regulations that restrict the freedom to marry for persons with intellectual or mental disabilities. Such restrictions are usually justified by the need to protect persons with intellectual or mental disabilities against abuse, their inability to function within a family and raise children, as well as is based on eugenic reasons.

“Increasingly more often these stereotypes about persons with mental disabilities being completely unable to start a family or raise children are effectively challenged and rejected. It is emphasised that such persons, with sufficient support from the state, can create happy families. Also international law more and more often recognises that persons with disabilities’ right to family life must be respected”, Mr Szwed explains.


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