msm and legal barriers to family-based care maurice tomlinson aids free world jamaica consultant...

MSM and Legal Barriers to Family-Based Care

Maurice TomlinsonAIDS Free World Jamaica Consultant

XVIII International AIDS Conference Vienna Austria July 22, 2010

Outline

• Definition of FBC and some relevant legal issues.

• Some relevant International Commitments• State of Intl. and Caribbean MSM

Criminalization • Impact of MSM Criminalization – Indian

experience• Impact on OVCs of MSM criminalization


Definition

• Family Based Care: – Focus on the family as opposed to the physician– Family the central deliverers of care – Care goes beyond medication– Involves adherence, the social aspect, emotional

support, attendance to financial, physical and other needs.

– A more wholistic approach to care.


2 legal issues that arise from FBC

• Disclosure• Family types– Opposite sex married MSM – Civil union or same-sex married MSM– MSM and children


International Commitments for MSM and FBC

• Privacy & noninterference with family, home;• Right to marry and to found a family;• Highest attainable health.

– Universal Declaration on Human Rights– International Covenant on Civil and Political Rights– International Covenant on Economic Social & Cultural Rights – American Declaration on the Rights & Duties of Man– American Convention on Human Rights


Parties and signatories to the ICCPR: Dark Green signed and ratifiedLight Green signed but not ratified Gray neither signed nor ratified


Laws Regarding Same Sex Sexuality


Anglophone Caribbean Penalty for Same-Sex Male Intimacy


Privacy & Family Rights in the Jamaican Constitution

• 13. Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual...…(c) respect for his private and family life,…

• Undermined by Savings Law Clause


1864 Offences Against the Person Act

Unnatural Offences• 76. Whosoever shall be convicted of the abominable crime of buggery…

shall be liable to be imprisoned and kept to hard labour for a term not exceeding ten years.

• 77. Whosoever shall attempt to commit the said abominable crime…or of any indecent assault upon any male person…[liable to] seven years, with or without hard labour.

Outrages on Decency• 79. Any male person who, in public or private, commits…any act of gross

indecency with another male person… [liable to] two years, with or without hard labour.


MSM and Family types

• Same-sex unions rarely granted legal status• Caribbean prohibition on same-sex unions

(Corbett v Corbett) • Negative implications for benefits provisions

and health care attendance/supervision• ‘Heterosexual’ marriages entered into for

family, financial, social, etc. reasons…often with tragic results.


MSM Disclosure in India

• Disclosure of same-sex behavior to wives, families or health care professionals rare–2% to wives–6% to family members–15% to health care professionals

Dr. Sunil Solomon presented 10/02/10


Children & MSM FBC• States Parties shall respect and ensure the

rights…[of] each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's…sex… or other status.

• ‘The best interests of the child shall be a primary consideration.’

– UN Convention on the Rights of the Child (1989)XVIII International AIDS Conference Vienna

Austria July 22, 2010

Domestic Legal Barriers for MSM & Children

• Jamaica Child Care and Protection Act• Definition of Children at Risk– no or unfit parent or guardian or not exercising

proper care and guardianship, is either falling into bad associations, exposed to moral danger,

– is being cared for in circumstances in which the child's physical or mental health or emotional state is being seriously impaired or there is a substantial risk that it will be seriously impaired;


Penalty for not reporting ‘abuse’

• Must report abuse on mere suspicion. • Failure could lead to a fine not exceeding five

hundred thousand dollars or to imprisonment to a term not exceeding six months or to both such fine and imprisonment.


Findings of American Psychology Association

• Children raised in same sex households are as well adjusted as children in heterosexual households.

» 2005


Karen Atala v Chile

• Lesbian Chilean judge living with her partner denied custody of her 3 daughters because of perceived moral danger

• April 7, 2010 IACHR found discrimination against a parent in a child custody dispute because of her or his sexual orientation violates the American Convention on Human Rights.


• Mother is usually best;• No single male will usually be allowed to

foster/adopt a female child • From personal experience single male

adoption of male children is also frowned upon.

Jamaican Policy re: Child Care


Jamaican Delayed Success Story

• Male X heard about orphaned positive child • Took child in unofficial fostering arrangement • After 3 years decided to adopt to give child a

sense of belonging and also access to health and other benefits.

• Applied through Adoption Board which did several home visits, interviews, etc.

• Clear evidence child improved dramatically from base line characteristics.


MSM and Son (Contd.)

• Met with resistance by conservative female adoption officer.

• Had to employ senior counsel to fight the delay.

• Judge commented on the obstructive nature of adoption official.

• Adoption finally approved after 3 years.• Not all individuals able or willing to undertake

this. XVIII International AIDS Conference Vienna

Austria July 22, 2010

Suggested Strategy for MSM involvement in OVC Care

• At least 80 infected children in children’s homes in the KMTR

• Adoption or fostering by MSM is a viable option to addressing this issue.

• Many MSM have expressed a desire to foster.• Policy impediments and clear guidance on

what constitutes ‘child at risk’ will first have to be addressed.


Summary

• Criminalization of same-sex intimacy undermines FBC by fostering non-disclosure;

• Non-recognition of same-sex unions limits FBC by denying family benefits;

• OVC’s access to potential parents is denied due to homophobic child-care policy.


THANK YOU!Dedicated to Jamaican MSM.


msm and legal barriers to family-based care maurice tomlinson aids free world jamaica consultant...

Documents

familybased care msm

privacy family rights

family life

family typessamesex

ovcs of msm criminalization

msm civil union

sex male intimacy

sex sexuality