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Mexico Bill Would Further Endanger Disability Rights

Right to Make Decisions Should Not Turn on ‘Capacity’

For the second time in less than six months, a prominent member of the majority party in the Mexican Senate has introduced a bill to amend the country’s civil law framework with provisions that would further restrict the rights of people with disabilities.

Marca Bristo fellow Bryan Russell explaining the Peruvian legal capacity reform at the Mexican Senate, March 30, 2022. © 2022 Human Rights Watch

This proposed bill would amend the Federal Civil Code to introduce the concept of “differentiated capacity” and “differentiated support” in legal decision-making, authorizing judges and notaries public to determine whether a person with intellectual or psychosocial disabilities has the capacity to make legal decisions. Based on psychiatric and psychological evaluations of an individual to assess their capacity to independently engage in legal actions, these officials could appoint third persons or guardians to make decisions for a person without their consent. Currently, only judges can make this determination.

These amendments could void all independent legal actions of persons with intellectual and psychosocial disabilities who are deemed to lack or have lesser capacity to take them, unless they are carried out with the aid of an appointed support person empowered to act as a substitute decision-maker. If adopted and implemented, the bill would lead to violations of fundamental rights, including the right to hold and administer property, to inherit, and to marry, in direct contravention of the Convention on the Rights of Persons with Disabilities (CRPD).

The bill also replicates existing problematic provisions in Mexico’s Federal Civil Code that conflate legal capacity and mental capacity. The Committee on the Rights of Persons with Disabilities has criticized Mexico for these rights-violating provisions. Last week, the Committee issued its Concluding Observations on Mexico’s periodic review obligations and expressed its concern regarding “provisions in the Federal Civil Code … that contain rules on legal incapacity and guardianship for adults with disabilities, despite a judgment by the National Supreme Court of Justice of 2019.” However, the proposed bill would be a step in the opposite direction by expanding authority to public notaries in addition to judges to impose restrictions on legal capacity.

The right to make decisions is not conditioned on a person’s cognitive skills and should not be restricted based on disability. Mexico should immediately repeal the proposed bill in its entirety and replace it with a new bill that honors Mexico’s international human rights obligations.

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