The
Right to Liberty of Persons with Disabilities From the Statute of Persons with
Disabilities
by Anelize PANTELEÃO PUCCINI CAMINHA, Laywer and Professor at
Faculdade Curitibana and Pontifícia Universidade Católica do Paraná, Curitiba,
Paraná, Brazil.
From the most remote Western civilizations, the
disabled person has always been marginalized in society under the stigma of
inferiority. This reality, however, has been suffering from the impacts of a
worldwide trend towards the promotion of its social inclusion, especially in
the last decades.
This work aims to analyze this social phenomenon, with
an emphasis on the right of freedom of the disabled, in their legal-normative
perspective. Given the repercussion of recent legislative innovations in
numerous spheres of action of the individual, this theme is relevant and
requires more in-depth reflection from the operators of the Law.
In addition, statistical data reveal that this social
segment corresponds to a significant percentage of the Brazilian population -
23.9% (twenty-three point nine percent) have some type of physical disability
and 8.3% (eight point three percent) presents a severe deficiency[1] - which
claims the state and society at large - which seeks to be guided by the supreme
values of freedom, security, well-being, development, equality and justice in
a context of fraternity, pluralism and absence of prejudice[2] - special
attention.
After delimiting the concept of handicapped, we will
make a brief historical retrospect of the social insertion of the disabled
person, from antiquity to the present.
Next, we will approach the notions of autonomy and
human dignity as guidelines of the legal rule and, subsequently, the freedom of
the disabled, in light of Brazilian legislation, specifically Law 13,146, of
July 6, 2015 Deficiency.
The available jurisprudential collection is very
small, thus the research will be supported predominantly by a bibliographical
and normative one, by reading scientific works and articles published in
national and international journals, that directly or indirectly face the
proposed issues.
Without intending to exhaust the subject, we will
discuss the right of liberty of the disabled person from an eminently normative
perspective, with the aim of contributing to the debate on the scope of the
legislation of regency.
Throughout their life trajectory, handicapped
experience all sorts of adversities, under the cloak of invisibility.
Nonetheless, the growing awareness of their intrinsic
value and potential has led to some state and civil society initiatives aimed
at minimizing the negative effects of discriminatory actions and social
exclusion, through the implementation of specific public policies.
In order to approach this theme, it is necessary to
first delimit the concept of a handicapped and, in the sequence, to make brief
considerations about the historical evolution of its insertion in the society,
from the Antiquity to the present times.
A) Delimitation of the Concept of Handicapped[3]
The Declaration on the Rights of Persons with
Disabilities, adopted by the United Nations General Assembly on 9 December
1975, uses the term “disabled person”
to designate a person incapable of assuring, in whole or in part the needs of a
normal individual or social life, due to a deficiency, congenital or not, in
their physical or mental capacities[4].
Convention No. 159 of the International Labor
Organization, promulgated by Decree No. 129 of May 22, 1991[5], and the
Inter-American Convention on the Elimination of All Forms of Discrimination
Against Persons with Disabilities (or the Convention of Guatemala), promulgated
by Decree No. 3.956, of October 8, 2001[6],
define a disability, for the purpose of legal protection, as a physical, mental
or sensorial restriction, permanent or transitory, which limits the ability to
exercise one or more essential activities of daily living, caused or aggravated
by the economic and social environment.
The International Convention on the Rights of Persons
with Disabilities and its Optional Protocol, ratified by the National Congress
through Legislative Decree no. 186, of July 9, 2008, in the system provided for
in art. 5, paragraph 3, of the Constitution of the Federative Republic of
Brazil, and in force externally since August 31, 2008, and, internally, as of
the promulgation of Decree 6.949 of August 25, 2009[7],
define disability as a lasting physical, mental, intellectual or sensory
disability, which, in interaction with behavioral and environmental barriers,
may prevent the full and effective participation of the individual in society
on an equal basis with others.
These international norms have consolidated a paradigm
shift in the world context: from the traditional medical model to a social
model, in which the limiting factor is the environment in which the person is
inserted, not the deficiency itself, signaling, with such innovation, that the
deficiency does not necessarily mean the existence of disease, nor does it give
the individual the condition of being sick.
The Constitution of the Federative Republic of Brazil
provides for the protection of the physical, sensory or mental handicap, but
relegates to the ordinary legislator the delimitation of the respective concept[8].
At the infra-constitutional level, the most relevant norm
is Law No. 7,853, dated from October 24, 1989[9],
which supports the social integration of the disabled, based on the basic
values of equal treatment and opportunity, social justice, respect to the
dignity of the human person, welfare and others, as indicated in the
Constitution or justified by the general principles of Law, and Decree No.
3.298, of December 20, 1999, with the changes promoted by Decree No. 5,296, of
2 December 2004[10],
which regulates the said legal diploma.
In the regulations mentioned above, deficiency is
conceptualized as any loss or abnormality of a psychological, physiological or
anatomical structure or function that generates incapacity for the performance
of activity, within the standard considered as normal for the human being; permanent
disability, such as that which has occurred or stabilized for a period of time
sufficient to prevent recovery or is likely to change, despite new treatments,
and incapacity, such as the effective and marked reduction of the capacity for
social integration, in need of equipment, adaptations, means or special
resources so that the person with a disability can receive or transmit
information necessary for their personal well-being and the performance of the
function or activity to be performed.
Decree nº 3.298, of December 20, 1999, also lists the
categories of disability, in the following terms:
“(1) the
complete or partial alteration of one or more segments of the human body, which
causes the impairment of physical function, presenting as paraplegia, paraparesis,
monoplegia, monoparesis, tetraplegia, tetraparesis, triplegia, triparesia,
hemiplegia, hemiparesis, amputation or absence of limb, cerebral palsy, limbs
with congenital or acquired deformity, except aesthetic deformities and those
that do not produce difficulties for the performance of functions;
(2) partial
or total hearing loss, which can vary in degrees and levels (mild deafness -
from 25 to 40 decibels, moderate deafness - from 41 to 55 decibels, severe
deafness - from 56 to 70 decibels, severe deafness - from 71 to 90 decibels,
profound deafness - above 91 decibels, and finally anacusis - absence of
hearing);
(3)
reduction of visual acuity (equal to or less than 20/200 in the best eye, after
the best optical correction), visual field (less than 20º - Snellen table) or
both situations, being defined as blindness to visual acuity equal to or less
than 0.05 in the best eye, with the best optical correction, and as low vision
the visual acuity between 0.3 and 0.05 in the best eye, with the best optical
correction;
(4) mental
deficiency, where intellectual functioning is significantly below average,
since before the age of eighteen and associated with limitations in two or more
areas of adaptive skills (communication, personal care, social skills,
community use, health and safety, academic skills, leisure and work), and
(5) multiple deficiency, characterized by the
association of two or more deficiencies”[11].
The Disabled Person’s Statute[12], in turn,
defines a person with a disability as one who has a long-term physical, mental,
intellectual or sensorial disability, which, in interaction with one or more
barriers, may obstruct their full participation and society on an equal basis
with other people.
The view of society about the disabled, however, has
evolved over time, which will be discussed in the next topic.
B) Historical Evolution of the Insertion
of the Disabled in Society: a Paradigm Shift
Among primitive people, disabled ones received from
the members of the community two distinct types of treatment: either rejection
and summary elimination, as a hindrance to the survival of the group; or
welfare protection, in the search for the sympathy of the gods.
In classical civilizations (Hebrews, Greeks, and
Romans), there are some references, including legislative, to the disabled[13]. In the
Bible, there are records of discriminatory treatment towards people with any
type of disability.
In ancient Rome, collectivity allowed fathers - nobles
or commoners - to sacrifice babies who were born with some kind of anomaly,
since the vitality of the disabled by Roman law was not recognized. The custom,
however, especially among noble families, was to leave the children on the
banks of rivers or in sacred places, for families of the plebs or slaves to
welcome them[14].
Even in Sparta, both newborns and people who acquired
some deficiency in the course of their life were thrown into the sea or off a
precipice. Thus, children who had some form of different constitution would
need to be exterminated, at the discretion of the Council of Elders, who,
according to previously established requirements, could choose some from the
age of twelve and send them to a camp where they would learn to survive alone[15].
In his work The
Republic, Plato accurately portrays the dominant thought of the time: “for the sick
and incontinent individual, they did not think that there was any advantage to
him or to others in prolonging his life, nor that art of medicine was done in
its intention, even if it were to be treated, was richer than Midas”[16].
In spite of this, by the influence of Aristotle,
Athenians developed a system of protection and social protection of the sick
and disabled, from the conception that to treat of equal way the unequal
constituted an injustice[17].
With the advent of Christianity, society’s view on
physical disability has undergone a significant transformation, under the
influence of the valuation of the human person and the teachings of forgiveness
of offenses, charity, humility and understanding of poverty and simplicity of life.
From the fourth century, establishments were set up to
serve the poor and marginalized, including individuals with some kind of
disability.
In 451, the Council of Cacedonia[18] approved a
guideline that assigned to bishops and other religious the responsibility to
organize and assist the poor and sick in their communities. Charity and aid
institutions were set up in different regions, including on the initiative of
the French king Childebert in the year 543 in the French city of Lyon. Between
the fifth and fifteenth centuries, the places for care of the disabled were
maintained, but under the control of feudal lords.
Historical references emphasize that, throughout the
medieval period, mystical conceptions predominated, alternating the concept of
physical deficiency or congenital malformation as possession by the devil
(theological) or, sometimes, as divine design or punishment from God.
During the Inquisition, the Catholic Church itself
adopted discriminatory and persecutive behavior, replacing the feeling of
charity by rejecting those who deviated from a “standard of normality” whether by their
physical aspect or by the defense of alternative beliefs.
During the Renaissance, the development of a humanist
philosophy and the advancement of science allowed the recognition of universal
rights, but without overcoming the social exclusion of the disabled. The
individual ceased to be a hostage of “natural powers” or divine wrath, prevailing a
revolutionary new way of thinking, which would alter the destiny of less
fortunate, sick, and marginalized men, including those with physical, sensorial
or mental problems[19].
After the French Revolution and until the nineteenth
century, mercantile capitalism and its developments - such as the Industrial
Revolution - gave rise to the idea that disability was a medical and
educational issue, requiring the confinement of the person in convents,
hospices or educational establishments Special. A paradigm model was created in
which the individual was kept segregated, with permanent link with the
institution, in search of means that facilitated the execution of work and
locomotion.
Throughout the sixteenth and seventeenth centuries,
specific places of care for people with disabilities were built in different
European countries, outside traditional shelters or homes for the poor and the
elderly.
In the United States of America, from the 19th
century, the disabled began to be treated differently. In 1811, sailors and
marines who acquired some physical limitation were assisted with housing and
food. In Philadelphia, in 1867, after the Civil War, the National Home for
Disabled Volunteer Soldiers housed countless veteran war soldiers.
In the twentieth century, the two World Wars boosted
the process of rehabilitation of the disabled, the shortage of labor and the
need to ensure a remunerated activity and dignified social life for mutilated
soldiers. The assistance and quality of treatment accorded not only to persons
with disabilities but also to the population at large have made substantial
progress because the large contingent of individuals with war sequelae required
special measures (for
example, specific rehabilitation programs).
Currently, in the normative horizon, there is an
evolution in the role of the rights of the disabled person, which began with
the rupture of the welfare model by the Constitution of the Federative Republic
of Brazil of 1988 - which established pluralism and isonomy as vectors in a
society characterized by diversity - and reached its apex with the conclusion
of the International Convention on the Rights of Persons with Disabilities and
its Optional Protocol, which established uniform guidelines and criteria to
ensure, promote and protect the full and equal exercise of rights by with a
view to their social inclusion.
In Brazil, this agreement was approved with
constitutional amendment status and led to the issuance of the Disabled Persons
Statute, for the adjustment of the infra-constitutional order to the parameters
outlined in the international orbit.
The International Covenant on the Rights of Persons
with Disabilities is a landmark in guaranteeing human rights because it is the
result of a widespread consensus of the international community (governments,
non-governmental organizations and citizens) on the need to ensure respect for
the integrity, dignity and freedom of individuals with disabilities, with the prohibition
of negative discrimination, through laws, policies and programs that meet their
characteristics and promote their participation in society.
In the wake of this normative evolution, Law 13,146 of
July 6, 2015, which includes a set of normative prescriptions, was established
in Brazil to ensure and promote, under conditions of equality, the exercise of
the fundamental rights and freedoms of the disabled person, with a view to
their social inclusion and citizenship.
Before entering into the specific analysis of such
legislation, with regard to the right of freedom of the disabled, it should be
emphasized that the freedom of all individuals is substantially based on two
distinct pillars: autonomy and responsibility.
A)
Autonomy and Human Dignity as Normative
Guidelines
The conceptions of autonomy and dignity of the human
being are logical presuppositions for the discussion about the content of the
norms that make up the legal status of people with disabilities.
Kant was the first theoretician of Modernity to affirm
that it is not possible to attribute value (price) to man, since man, as a
rational being, must be considered as an end in itself and in function of its
autonomy[20]. Freedom to
exercise practical reason is the only condition for the person to put on
dignity, independently of any social recognition (equality)[21].
It is for no other reason that the entire
international system of protection of human rights was based on the freedom of
the individual.
In order to approach this theme, autonomy is
understood as the ability of the individual to decide freely about himself and
his relationships with others, forming his own personality (and personal
history), absolutely individual and irreplaceable. And dignity is understood -
as an ethical, political and juridical value[22], often
associated with the idea of the dominant justice in society - as an inherent
quality of the human being that allows him to exercise, autonomously, his
practical reason. Dignity is, therefore, inseparable from autonomy.
Such notions are echoed in the homeland doctrine.
Ingo Wolfgang Sarlet defines the dignity of the human
person as “the intrinsic and distinctive quality
recognized in each human being that deserves the same respect and consideration
on the part of the State and the community, implying, in this sense, a complex
of fundamental rights and duties that guarantee the person against any and all
degrading and inhuman acts, as they will guarantee the minimum existential
conditions for a healthy life, as well as fostering and promoting their active
and co-responsible participation in the destinies of their own existence and
life in communion with other human beings, with due respect to the other beings
that are part of the network of life” [23].
Indeed, the autonomy of the will, as the capacity to
determine oneself and to act in accordance with the representation of certain
laws, is an exclusive attribute of rational beings, constituting the foundation
of the dignity of human nature.[24]
For Alexandre de Moraes, “Dignity is a spiritual and moral value
inherent to the person, which manifests itself singularly in the conscious and
responsible self-determination of life itself and which brings with it the
pretension of respect on the part of other people, constituting a invulnerable
minimum, which every legal status must ensure, so that only exceptionally
limitations can be placed on the exercise of fundamental rights, but always
without neglecting the necessary esteem that all persons deserve as human
beings”[25].
Flávia Piovesan points out that human dignity is the
greatest value that inspired the Universal Declaration of Human Rights of 1948,
extracting the universality and indivisibility of human rights[26].
In reality, the recognition and guarantee of freedom -
and of fundamental rights in general - constitutes a requirement of the dignity
of the human person, a vector that limits the performance of the State itself.
Protecting one’s individuality and autonomy from state and third-party
interference implies ensuring the ownership of rights by the individual[27].
It should not be forgotten that social inclusion does
not mean the absolute equality of all members of the community, but rather
respect for diversity, the guarantee of effective participation in the dynamics
of the social group and the granting and protection of rights based on
equality.
B) The Legal Treatment of the Freedom of
the Handicapped in Law 13,146 / 2015 (Statute of Persons with Disabilities)
In his work The
Right of Freedom, Honneth[28]
argues that every individual has the right to reject social obligations and
ties when they are incompatible with their own legitimate interests or moral
convictions. Indeed, the State protects this right or it is intersubjectively
guaranteed.
According to the author, juridical freedom is
associated with the idea that the State has to protect the individual’s option
to relegate an ethical decision for a time if it is necessary for him to
perform his will, and moral freedom is that through which the individual
removes certain social impositions, claiming juridically accepted reasons. Both
form systems of action for individual freedom are regulated by rules of
reciprocal recognition[29].
Individuals contract social bonds or are in closed communities, and legal and
moral liberties are parasitically related to the practice of social life,
allowing the individual to renounce the demands of that society and assume, in
relation to them, a vision of “conscious”
revision[30].
Intimate relationships presuppose a space for the
reciprocal exploration of individual emotional states. Apart from marriage and
the family constitution, they are institutionalized, regardless of the sexual
orientation of the individual. Even if there is no intention of maintaining a
long-term, State-sanctioned bond, they constitute a form of legitimate relationship
for all members of society.
Honneth warns that intimate relations (any of them)
are expected: reciprocal love not founded on the arbitrary qualities of the
other, desires and interests that are considered meaningful in their
interpretation for themselves, reciprocal obligations and reference to a common
future, concept established in the stable union[31].
He also maintains that a new concept of marriage has
emerged in the doctrine: from then on marriage has come to be defined, in a
broad sense, as a community of sustenance and gain, so that the spouse that is
not economically active, after legal or natural right to marry, is entitled to
half of the goods acquired during the time during which they were married, in
the form of compensation for gain or support[32].
In today’s social context, freedom in intimate
relationships can only be experienced where there is no marriage or where it
cannot be celebrated. The non-existence of restrictions to public marriage
(subjective right) is what ensures their private autonomy (in essence). In
affective bonds, there is a greater unevenness of closeness, individuals
complement each other not only to stipulate and to support their ethical
formation, but also to meet the physical needs of each one for their personal
well-being. This particularity has repercussions on the duration of the bond: “often the
protagonists are presented as if they no longer have the motivation to allow
normative obligations necessary to continue the love relations”[33].
According to Honneth, “the
institutional autonomization of the intimate relationship, which stripped
itself of any external supports in the social tasks in the family expectations,
ended up making only the still individual feelings of affection and attraction
decide how long the duration of the bond with one another”[34].
The fact of joining two persons linked to each other
is considered the third sphere of personal attachment, given that, for social
freedom, which we can speak of in the concept of the modern family, triangularity
is decisive and constitutive[35].
In addition, the traditional structure of the family
composed of the father (provider), the mother (caretaker of the home) and the
child (the object of formation for the future) was altered by social factors
(including economic, market and professional) and implied a change of concepts.
This transformation was also reflected in the father’s position in the
triangular relationship for the child’s affective-social socialization, which
was once the exclusive role of the mother[36].
Incorporated in the intimate relationship, the
principle of remission of revocation loses legitimacy within the family, since
the relationships between parents and children are not legally and normatively
irredeemable, becoming a central point of attention and lifelong care for
parents[37].
Distinct family nuclei (married / unmarried parents,
biological / social children, heterosexual / homosexual parents) are more
frequent. The relational device composed of three members with the same rights
and values, whose roles and tasks change over the course of the phases of life
in common, allows us to draw some conclusions about the implicit norms of
current family life[38].
One observes the alternation of roles, independently of the norms, and,
gradually, it has been assuming an institutional force, which is the
fulfillment of a normative requirement, which has accompanied the modern
family, as well as in romantic love: each of its three members - father, mother
and son – “is inserted in the family with the same rights, each one in the
peculiarity of his subjectivity, and, in this way, it is correspondingly that
he should receive a zeal and an empathy that correspond to his needs”[39].
To Honneth, “according to the normative principle,
today the three members of the family - and it does not matter if they are one
or more children - are opposed to the normative principle as partners of
interaction in equal rights, being able to expect empathy, dedication and care
demanded by their specific needs and inherent to each stage in which they are:
at the normative level, this is precisely the consequence of which the
triangularity of family today, as a tendency went from a “in itself”
to a “for itself”[40].
In reality, there is a “moral obligation” in families,
according to the standard of the duties of friendship: “if grown children, in
relation to care and support, are only forced by their parents since the
relationship continues to be characterized as love, and affection, we must rid
ourselves of the old conception of love and affection, we must rid ourselves of
the old conception that these are duties attached to roles or even “natural”
and instead bear in mind the normative model of relations of friendship (...)
governed by moral norms founded on reciprocal affection, also among families
the constitutive obligations result only from ties and attachments that have
always been experienced.[41]”
A new relationship is established, called by some as the “purification”
of the family, with the modification of external roles and impositions[42].
In contemporary families, social freedom is no longer
connected to the reflection of the parental recognition relationship in a third
member (triadic relationship). Although this triadic relation was considered by
Hegel his contemporaries, the reality of the death of one of the parents still
in the infancy of the son was not considered, since the son then saw itself.
Today, as the family relationship has extended over time, the child is seen
further in the parents[43].
What Hegel identified as the objectification of the love of the couple in their
own child is conceived today with a very different meaning from the reciprocal
symbolization of past and future stages of life.
John Rawls was best theorized about the democratic value
of a prodigal education with a dedication to love, but if the democratic
community depends on the ability of its members to practice cooperative
individualism, the political-moral meaning of family spheres will no longer be
questioned ; “because with abstraction to the affective ties, the psychic
preconditions are created in the bosom of families guided by the trust and
equality in all the occupations with which the individual will have to
contribute to be inserted in certain communities by virtue of their individual
capacities and competences, in view interests beyond the public sphere”[44].
Durkheim in Sociology
of morality treats the family as a “secondary organ of the state”, thought
as “normative reconstruction” of all
moral and ethical “rules of behavior, whose individual observance should ensure
the preservation of a cooperative democracy. The author, moreover, since a
democratic public sphere has to be erected with the aid of state laws and the
corresponding redistribution of everything in its power, to enable families,
thus, to unfold their forms of interaction idiosyncratic, which ultimately
stimulated cooperation”[45].
In view of such lessons, Law No. 13,146, of 2015,
known as the Disabled Persons Statute, represents an important step forward in
consolidating the freedom of an expressive social segment, since, from the
legal point of view, it guarantees numerous rights to the individual with
disabilities, such as to constitute a family, to marry or be in a stable union
and to act with autonomy. To ensure equality with others, the legislator
abolished his condition of incapacity, allowing him to practice, with autonomy,
acts of civil life, regardless of the authorization of the healer.
This normative innovation can be associated with the
conception that freedom in affective relationships does not derive from
contractual obligations giver by the State (official marriages). Social
prototypes are abandoned, and private autonomy gains space, based on subjective
rights that emerge from these relationships.
Equality is the fundamental basis of the legislation
protecting the disabled person, as advocated in Article 1 of the Statute: “Article 1
- The Brazilian Law on the Inclusion of Persons with Disabilities (Statute of
the Person with Disabilities) is hereby established, designed to ensure and
promote, under conditions of equality, the exercise of fundamental rights and
freedoms by persons with disabilities, with a view to their social inclusion
and citizenship.”
In this new scenario, the person with disabilities
integrates the family and can no longer be treated as absolutely incapable[46]. The
freedom to decide with whom to relate, guaranteed in articles 84[47] and 85[48] of the
Statute of People with Disabilities, strengthens their social integration.
In addition, there is a tendency for norms to be
fulfilled within the family, regardless of the presence of feelings of
antipathy affection, since this gives the individual strength to assume
responsibilities in the distribution of tasks, insofar as he feels accepted and
added emotionally to the other members.
The great “innovation” of family
functioning - in which the disabled is inserted with full autonomy - is the
ability to exercise “cooperative
individualism”: “ability to develop the scheme of
thought of a generalized other, in the perspective of intrafamilial
responsibilities have to be distributed in a fair and equitable way,
willingness to assume such obligations in a way that is also active, the
deliberative negotiation of such responsibilities in one’s own occupations, the
tolerance necessary for other members to develop their lifestyles and
preferences that contradict the their own ethical principles” - reciprocal
acceptance.
The role of the disabled person is strengthened by the
“legal”
guarantee of the freedom to establish their affective relationships, without
interference from third parties.
Throughout history, society’s view of the disabled has
undergone a significant change: from rejection and summary elimination,
combined with a welfare protection, to the equalization of rights and duties.
This paradigm shift has led to the incorporation of
norms that aim to promote their social inclusion in the legislation of
countless countries, including Brazil, especially in the last decades.
Among the normative innovations of greater relevance
in the Brazilian legal system, the edition of the Statute of Persons with
Disabilities (Law no. 13,146 / 2015) stands out, which, based on the
International Convention on the Rights of Persons with Disabilities and its
Optional Protocol, ratified by the National Congress through Legislative Decree
186, of July 9, 2008, in the system provided for in art. 5, paragraph 3, of the
Constitution of the Federative Republic of Brazil, recognizes the deficient autonomy
to exercise fundamental rights, consecrating their individual freedom in a
broad spectrum.
Law No. 13,146, of 2015, called the Disabled Persons
Statute, represents an important step forward in consolidating the freedom of
an expressive social segment, since it guarantees numerous rights to the
disabled person, such as to establish a family, to contract marriage or stable
union and to act with autonomy. To ensure equality with other persons, the
legislator abolished the condition of incapacity, allowing him to practice,
with autonomy, acts of civil life, regardless of the authorization of the
healer.
This normative innovation can be associated to the
conception that freedom in affective relations does not derive from contractual
obligations given by the State (official marriages), extending the private
autonomy.
In this new scenario, the person with disabilities
integrates the family and can no longer be treated as absolutely incapable. The
freedom to decide with whom to relate, guaranteed in the Statute of People with
Disabilities, strengthens their social integration.
Constitution of
the Federative Republic of Brazil. Available at:
https://www.planalto.gov.br/
(accessed on: Feb 4, 2017).
Cunha, Alexandre dos Santos, A normatividade da pessoa humana: o estudo jurídico da personalidade e
o Código Civil de 2002, Forense, Rio de Janeiro, 2005.
De Moraes,
Alexandre, Direito Constitucional.
16. ed. São Paulo: Atlas, 2004, p. 52.
Fonseca, M., Proteção
Jurídica dos Portadores de Deficiência, in: IBAP - Instituto Brasileiro de
Advocacia Pública & Editora Esplanada ADCOAS, São Paulo, dezembro de 2000
Fontes, Fernando, Pessoas
com deficiência em Portugal, Fundação Francisco Manuel dos Santos, Lisboa, 2016.
Kant, Immanuel, Fundamentação
da metafísica dos costumes e outros escritos, tradução de Leopoldo Holzbach,
Martin Claret, São Paulo, 2004.
Piovesan, Flavia et al., Leituras
complementares de direito constitucional, 3.ed., JusPodivm, Salvador, 2008,
p. 52.
Platão, A República de
Platão, J. Guinsburg (organização e tradução), Perspectiva, São Paulo, 2014.
Sarlet, Ingo Wolfgang, Dignidade
da Pessoa Humana e Direitos Fundamentais na Constituição Federal de 1988,
Livraria do advogado, Porto Alegre, 2001.
Silva, Otto Marques. A
Epopéia Ignorada: a pessoa deficiente na História de ontem e de hoje,
CEDAS, São Paulo, 1987.
[1] Census 2010. Available at:
http://www.pessoacomdeficiencia.gov.br/app/sites/default/files/publicacoes/cartilha-censo-2010-people-com-deficienciareduzido.pdf.
Access: 6 feb. 2017.
[2] This is taken from the preamble to the
Constitution of the Federative Republic of Brazil of 1988, which reads as
follows: We, representatives of the Brazilian people, assembled in a National
Constituent Assembly to establish a Democratic State, to ensure the exercise of
social and freedom, security, well-being, development, equality and justice as
the supreme values of a fraternal, pluralist and
unprejudiced society founded on social harmony and committed, in the internal
and international order, with the pacific solution to controversy, we enact,
under the protection of God, the following Constitution of the Federative
Republic of Brazil. Available at: <https://www.planalto.gov.br/>.
Accessed on: Feb 4 2017.
[3] Until the advent of the Constitution of
the Federative Republic of Brazil of 1988, the terms “invalid”, “incapable”, “exceptional”
and “deficient” were commonly used to designate the person with physical,
mental or sensory too much. Subsequently, the term “person with a disability”
was incorporated into ordinary legislation, and the words “persons with special
needs” or “special person” were also adopted, with similar meanings. This
change in nomeclatura signaled a shift in focus from the problem of social
exclusion of the disabled - from the disabled and incapacitated person to being
considered as a person with a peculiar characteristic, without esteem of
inferiority. By virtue of international diplomas, however, the expression “person
with a disability” was abandoned, on the premise that deficiencies do not fit
because they are in the person.
[4] UN, Resolution 2542/75. Declaration on the Rights of Persons with Disabilities. Available
at: <http://www.portal.mec.gov.br/seesp/arquivos/pdf/dec_def.pdf>.
Accessed on: Feb 4 2017.
[5] Available at:
<https://www.planalto.gov.br/ccivil_03/decreto/1990-1994/D0129.htm>.
Accessed on: Feb 4 2017.
[6] Available at: <https://www.planalto.gov.br/ccivil_03/decreto/2001/d3956.htm>.
Accessed on: Feb 4 2017.
[7] Available at:
<https://www.planalto.gov.br/ccivil_03/_Ato2007-2010/2009/.../D6949.htm>.
Accessed on: Feb 4 2017
[8] Just to give an example, it is necessary
to mention the rules set forth in the Constitution of the Federative Republic
of Brazil, in its article 7, item XXXI, which prohibits any discrimination
regarding salary and admission criteria of the worker with a disability;
article 23, item II, which provides for the common competence of the Union, the
States, the Federal District and the Municipalities to take care of health and
public assistance, the protection and guarantee of people with disabilities;
article 24, item XIV, which attributes to the Federal Government, the States
and the Federal District competence to legislate concurrently on the protection
and social integration of persons with disabilities; article 37, item VIII,
which requires the legislator to reserve a percentage of public positions and
jobs for people with disabilities and to define the criteria for their
admission; article 40, paragraph 4, item II, and 201, paragraph 1, that allow
differential treatment to disabled persons for the granting of retirement;
article 100, paragraph 2, which ensures preference in the order of payment of
court orders; article 203, sections IV and V, which lists the protection of the
disabled as an objective of the social assistance system (habilitation and
rehabilitation and granting of pecuniary benefit of a charitable nature);
article 208, item III, which provides them with specialized educational
services, and articles 227, §1, paragraph II, and 2, and 244, which impose on
the State the creation of specialized prevention and care programs for people
with physical disabilities , sensory or mental health, as well as the social
integration of adolescents and young people with disabilities, through training
for work and coexistence, and facilitating access to collective goods and
services, eliminating architectural obstacles and all forms of discrimination,
as well as the adequacy of public places, public buildings and collective
transport vehicles.
[9] Available at:
<https://www.planalto.gov.br. Accessed on: Feb 4 2017>.
[10] Available at:
<https://www.planalto.gov.br. Accessed on: Feb 4 2017>.
[11] Decree No. 3.298, of December 20, 1999.
Available at:
<https://www.planalto.gov.br>.
Accessed on May 25. 2018.
[12] Statute of the Persons with Disability.
Available at: <https://www.planalto.gov.br>. Accessed on: Feb 4 2017.
[13] Fonseca
M., “Legal Protection of Persons with Disabilities”, IBAP - Brazilian Institute of Public Advocacy & Esplanada
Publishing ADCOAS, São Paulo, December 2000, p. 482.
[14] Fontes F., Pessoas
com deficiência em Portugal. Lisbon: Francisco Manuel dos Santos
Foundation, 2016. p. 21.
[15] Fontes
F., Pessoas com deficiência em Portugal.
Lisbon: Francisco Manuel dos Santos Foundation, 2016. p. 21.
[16] Platão,
A República de Platão, J. Guinsburg (organização
e tradução), Perspectiva, São Paulo, 2014, p. 127.
[17] The model guided by the construction of
an ideal and perfect society and by the instrumental function of the individual
to the collective resurfaced in the first decades of the twentieth century,
with the dissemination of eugenics movements, justified by scientific theories
and the need to reduce state costs with disabled people. Maria Nivalda de
Carvalho Freitas, The insertion of people with disabilities in
Brazilian companies - a study on the relations between conceptions of
disability, working conditions and quality of life at work, doctoral thesis
presented to the Graduate Center and Research in Administration of the Faculty
of Sciences Economics of the Federal University of Minas Gerais – Belo
Horizonte – 2007, pp. 43-44, Available at:
https://ufsj.edu.br/portal2-repositorio/File/incluir/tese_maria_nivalda.pdf
(accessed on: 28 Apr. 2018).
[18] Available at:
http://catolicadeanapolis.edu.br/revmagistro/wp-content/uploads/2015/08/History-of-dogmas-cristolicos-de-Calced%C3%B4nia-aos-our-days.pdf
(accessed on: February 7th. 2017).
[19] O. M. Silva,.
A Epopéia Ignorada: a pessoa deficiente
na História de ontem e de hoje, CEDAS, São Paulo, 1987, p. 226.
[20] I. Kant, Fundamentação
da metafísica dos costumes e outros escritos, tradução de Leopoldo Holzbach,
Martin Claret, São Paulo, 2004.
[21] Ibidem.
[22] For Kant, dignity is the value of
everything that is priceless, that is, that can not be replaced by an
equivalent: “in the realm of ends everything has either a price or a dignity.
When a thing has a price, it can be put instead of any other as equivalent; but
when a thing is above all price, and therefore does not allow equivalent, it
has dignity”(I. Kant,
Fundamentação da metafísica dos costumes
e outros escritos, tradução de Leopoldo Holzbach, Martin Claret, São Paulo,
2004).
[23] I.
W. Sarlet,
Dignidade da Pessoa Humana e Direitos
Fundamentais na Constituição Federal de 1988, Livraria do advogado, Porto
Alegre, 2001, p. 73.
[24] Ibidem, p. 40.
[25] A.
De Moraes, Direito Constitucional, 16. ed., Atlas, São
Paulo, 2004, p. 52.
[26] F. Piovesan
et al. Leituras complementares de direito
constitucional, 3.ed., JusPodivm, Salvador, 2008, p. 52.
[27] I.
W. Sarlet,
Dignidade da Pessoa Humana e Direitos
Fundamentais na Constituição Federal de 1988, Livraria do advogado, Porto
Alegre, 2001, p. 59.
[28] A. Honneth, O Direito de Liberdade, Martins Fontes, São Paulo, 2015.p. 225.
[29] Ibidem, p. 225.
[30] Ibid., p. 227.
[31] Ibid., p. 265.
[32] Ibid., p. 271.
[33] Ibid., p. 276.
[34] Ibid., p. 277.
[35] Ibid., pp. 282-283.
[36] Ibid., p. 296.
[37] Ibid., pp. 299-300.
[38] Ibid., p. 300.
[39] Ibid., p. 301.
[40] Ibid., p. 302.
[41] Ibid., p. 305.
[42] Ibid., p. 307.
[43] Ibid., p. 305.
[44] Ibid., p. 307.
[45] Ibid., pp. 307-321.
[46] Statute of the Person with Disability: Article 6.
Disability does not affect a person’s full civil capacity, including: I –
marrying and forming a stable union; II – to exercise sexual and reproductive
rights; III – exercise the right to decide on the number of children and to
have access to adequate information on reproduction and family planning; IV –
to preserve its fertility, being prohibited the compulsory sterilization; V –
to exercise the right to family and family and community coexistence, and VI –
exercise the right to custody, guardianship, custody and adoption, as adopter
or adopting, on an equal basis with other persons. Available at:
https://www.planalto.gov.br (accessed on May 25. 2018).
[47] Statute of the Person with Disability:
Art. 84. A person with a disability has the right to exercise his legal
capacity on equal terms with other persons. Paragraph 1: When necessary, the
person with disabilities shall be subject to custody according to law.
Paragraph 2: The person with disabilities is allowed to adopt a decision-making
process supported. Paragraph 3: The definition of a person with a disability is
an extraordinary protective measure, proportional to the needs and
circumstances of each case, and shall last as shortly as possible. Paragraph 4:
The Trustees are obliged to render annually accounts of their administration to
the judge, presenting the balance of the respective year. Available at:
https://www.planalto.gov.br (accessed on May 25, 2018).
[48] Disability Statute: Art. 85. The custodian will only
affect the acts related to the patrimonial and business rights. § 1º. The
definition of curatela does not reach the right to own body, sexuality,
marriage, privacy, education, health, work and voting. § 2º. The curatorship is
an extraordinary measure, and the reasons and motivations of its definition
must be stated in the sentence, preserving the curate’s interests. § 3º. In the
case of a person in a situation of institutionalization, when appointing curator,
the judge must give preference to the person who has a family, affective or
community bond with the curatelado. Available at: https://www.planalto.gov.br (accessed
on May 25, 2018).