In the midst of the serious situations that affect our health, the economy and, therefore, almost the entire population, one of the debates that runs through the country today refers to the new Family Code. The material will govern from its postulates a good part of the domestic and collective life of the family and of Cuban society in general. Legality, religions, education, some habits of life, whether correct or incorrect, but very rooted in our traditions and ways of behaving, will be crossed, strengthened or even subverted by some of the new provisions that the new Code brings. Your rules may even create new habits.
Although other emergencies today occupy the center of daily thoughts and actions in most national households (queues, shortages, phantom transport, insufficient salaries, departures, plus the pandemic and the blockade), the matter requires analysis and variety of knowledge and criteria. It is precisely for this reason that New Word has tried to broaden its thematic horizons and approach different points of view to deal with this phenomenon. Needless to say, despite the insistence of our journalists, there were some specialists who refused to be interviewed without at least taking a look at our questionnaire. Others, and others, did not even answer our requests with a negative and left the answer silent. We hope that after publishing this number, since they lost the opportunity to have a voice and a vote in this analysis, their angry voices will not be raised to oppose or denigrate the arguments that we now present in our pages.
Thus, these are the paths followed by the analysis of such a complex agreement, which will affect dissimilar aspects of our closest future. We hope that these reflections, serious, serene, from multiple perspectives, serve to bring more clarity to the decisions to be made. Above all, I hope that they contribute, at least in a small grain of sand and of reason, to improve a little the life of our very suffering people right now. For this we have the opinions of the MSc. Mario A. Rivero Errico, lawyer, specialist in civil law and professor of Theory of the State and Comparative Constitutions, and Yasmay Ibaldo Pérez Marañón, lawyer, Master in Bioethics and secretary of the Father Félix Varela Institute of Ecclesiastical Studies.
How do you place the Cuban family in the current political, social and economic context compared to other times?
Mario A. Rivero Errico (M.R.): “The family is a basic cell in any society and the Cuban one is no exception to this rule. Located on what we can call the horizontal level of social relationality, the family is projected towards its interior, but also towards the common exterior, that is, towards the system of multiple relationships that make up the social fabric. In its bosom we receive the first teachings and we apprehend the first (great) values that have to mark our lives. It happens, however, that the Cuban family is less and less “family” because it has suffered an erosive process for six decades, which in the last three has increased in intensity. The great priorities that came with the implementation of the political project undertaken as of 1959 had a strong impact on the Cuban family, artificially separated in two ways: mobilizations (productive, military, educational) took place within the country, many of which they could have had, and even achieved, altruistic ends, but they damaged family structures by alienating their members and those alienations, in many cases, became irreversible. Externally, the blow was much stronger, as families were divided over what has become the great dilemma for Cubans: leave or stay.
”Very few families did not experience that disparity in terms of political choice that led some of its members to emigrate while others, fully identified with the ideas of the Revolution, remained in the country. The gloomy friend-enemy duality was then imposed, which reminds us of the infamous Karl Schmit, because in order to achieve revolutionary excellence it was a sine qua non requirement to break all ties with emigrated relatives, included under the ominous label of worms for the mere fact having established residence elsewhere. Maintaining that kind of relationship was a sure brake on the aspirations of personal progress that any Cuban of that time could have. Although at present this separation has finally been overcome thanks, to a large extent, to the role played by the relatives who emigrated in supporting those who remained on the Island after the economic debacle of the 1990s, subsequent stages of crisis with its correlative migratory waves continued to fragment the Cuban family.
”In the realm of the perceptible, we find that today more people die or emigrate than are born, as a consequence of which the family has been reduced; the huge table in my house, which was not enough to accommodate all the relatives on Sundays or special days, today is immense: that is my very personal sample button. Beyond the merely quantitative, Cuba is experiencing a crisis of values whose depth I do not dare to conjecture, and that unfortunate collapse affects their families without question. The fact that subsistence is usually linked to dissimilar situations of illegality, assumed in principle by parents in their role as group leaders, subverts the value criteria with which children grow up and open themselves to life, leading many compatriots of recent generations do not see in honest labor the means to achieve the goals that any human being sets for himself. That teaching —learned from reality— must be present when they have to establish their own family. And they will pass it on.
”In a context where wealth and its antonym are increasingly polarized, paradigms change: the sad experience of those who personally have achieved nothing after a life of honest work and dedication to the construction of a project that is increasingly far from more of his initial approaches, in contrast to the turgidity of the new rich, who have become winners for the purposes of society, can be more convincing than the most sublime speech. Since no one aspires to be a soldier on the side of the downtrodden, our boys look for their own ways of earning a living and, in many cases, achieve greater connotation than their elders; Thus, without intending to, they give rise to a new problem, because when in a group, the members who should be dependent achieve economic prominence, the hierarchies jump and authority collapses. Today I appreciate a Cuban family reduced in size, but also damaged in the hierarchical order, many of whose younger members do not bear the same feelings of respect for their elders present in previous generations. This authority must be restrained, because if a correct notion of order is not assumed from the cradle, it may be difficult to accept it later in our interaction with the institutions. Unfortunately, as far as I can see, the project of the Family Code goes in the opposite direction.
”Strictly politically, the family was, in times past, the space where we received the first teachings regarding the values advocated by the prevailing system in the country; Today, on the other hand, it is the area where many children perceive the logical dissatisfaction of their relatives with the actions of public authorities. Even in those families where the oldest members staunchly defend the political process, whose romantic stage they lived through, it is common for their descendants to think completely differently and make it their priority to leave the country as soon as possible, thus joining a spiral that undermines — even more so—the family fabric. Such an attitude, multiplied exponentially, ultimately weighs down Cuban society, since the weakness of its basic cell will necessarily have repercussions in all areas. The country ages before the stampede of its youth, and the family, deprived of the offspring that should multiply, is reduced and exhausted. The wake-up call with which Saint John Paul II asked Cuba to take care of their families is today more valid than ever and —it seems— less receptive ears than ever”.
Yasmay Ibaldo Pérez Marañón (Y.P.): “The family in Cuba is currently experiencing a dramatic situation, which is verified above all in the visible fragmentation present in homes and in their motives. The deteriorated circumstances in which one survives, the constant threat on the way in which each one expresses their disappointments and social dissatisfactions, the breach of the ethics of care and the eventual marginalization of the vulnerable are some of them and have the common result of blurring the family bond.
”Poverty and precariousness are noticeable, there is an increase in those who have been preferred to be called ‘homeless’, ‘poor’ after all, mostly elderly, who try, begging in the streets, to put something in their mouths and waking up the next day, as if the realm of ‘the familiar’ for them was alien. Meanwhile, the weariness of long queues for days on end to obtain the little or very little that is allowed, makes the time that can effectively be dedicated to caring for others, something essential in the family sphere, almost disappear.
”Although a disproportionate effort is notable in propagandizing unequivocal, favorable opinions and inexhaustible resilience about everything or almost everything important, current and potential families vote with their feet and with their bellies about the current situation. Facts account for thoughts; suffice it to mention the negative migratory balance and the alarming numbers of abortions and menstrual regulations that together have exceeded those of live births for several years. It is certainly not the first time that a great migratory wave draws gray farewells to those who, between frustrations and needs, seek a better future, but it is sad, and the sadness is evident in the daily spirit of those who remain. Is there distance from other times? Yes, but any comparison denotes the demerit of our time”.
A vital issue in this framework is the new Family Code. What advances and limitations do you observe in this project? How can the life of the Cuban family improve or not?
M.R.: “Pronouncing responsibly regarding a regulatory text that, between articles and other provisions, exceeds five hundred postulates is a very difficult task, especially for current legal operators, faced with the legislative explosion experienced since the beginning of this year. Three new procedural laws: a criminal one —as postponed as it is necessary—; another that covers civil, family, labor and commercial matters; and an administrative; All carriers of transcendental changes for the Cuban legal system, they demand immediate attention, limiting the possibilities of analyzing a text still pending approval. However, it is impossible to remain indifferent to this project, because we are all family, and as such, recipients of its regulations. Given that much has already been said about the good, I have to focus the analysis on what worries me as a citizen and father.
”My first objection does not look at the content of the new code itself, but at the strictly procedural aspect that precedes it and will have to be specified through the referendum established by the eleventh transitory provision of the Constitution. The referendum, as we all know, constitutes a mechanism typical of the so-called direct democracy, since it makes the citizen participate in public affairs without the intermediation of representatives, granting an extra legitimacy to the decision adopted insofar as it is the result of the opinion issued by most members of the political community. Now, for a decision-making process to be considered democratic, the right of potential voters to receive reliable information from different sources, with different approaches, must be guaranteed, based on which it will shape the criteria that will be poured into the polls. This, unfortunately, does not happen in terms of the Family Code, since citizens have been immersed in an information storm that operates in only one direction: that of apology. And it’s not that I consider the praise incorrect, but I believe that it only makes real sense if it is accompanied by its necessary counterpart: healthy criticism. The disparate criteria are perfectly valid in a process that turns us all into legislators, the exclusions are not.
”The result of any popular consultation is an expression of the prevailing public opinion in the political community regarding a specific issue, but said opinion does not arise in people by spontaneous generation, but as a result of their interaction with the flows of information circulating in the world. system of which the individual is a part. When information flows operate in a downward vertical direction, from the political superstructure to the social bases, offering a single interpretation of the subject, the process will be conditioning and the resulting opinion will be conditioned, to the clear detriment of democratic quality. Criticizing the project will be as worthy an attitude as praising it, provided that those who act in one way or another do so sincerely. Speaking out and listening to others on issues that concern us all is a civic virtue that we must not renounce, if we aspire to be that republic with everyone and for the good of all that the Master spoke of.
”On the other hand, a legislative referendum such as the one that awaits us implies a dilemma for the voter, forced to accept or deny categorically, this leads some to choose to assume what they believe is incorrect in order to access the beneficial aspects of the proposed rule; while others could reject the entire project just because one of its points seems unacceptable to them. It is not, however, a difficult problem to solve: it would suffice to identify, from the popular assemblies and the most frequent demonstrations on social networks, the aspects of greatest concern to citizens and plebiscite them through a prior consultation, where they vote yes or not for certain aspects, in such a way that the negative vote would oblige the rejection of the rejected topic from the project.
”In relation to the code itself, I think the incorporation of grandparents and other relatives in issues such as custody and communication with minors, rights-duties exclusive, until now, of parents, is very meritorious. In a country like ours, exhausted by successive abandonments, many grandparents are protagonists in the upbringing of their grandchildren and the norm should not remain alien to that sad portion of reality. The postulates tending to protect that sector that today is commonly identified with the adjective “vulnerable” are also to be applauded; however, from my professional experience I am skeptical about it because mechanisms also exist today, but they often malfunction. I could make a long report on cases where elderly people are victims of abuse, and despite even obtaining favorable sentences, they have not solved —or even reduced— the victimization to which they are subjected due to weaknesses in our institutions. It is not enough to dictate beautiful regulations, solid institutions are required, endowed with sufficient means and fully identified with their noble mission of protecting the weak against the abuse of the strongest. Of course, the improvement in normative support is to be applauded, it lays the foundations for perfecting the subsequent links.
”I am extremely concerned about the treatment given to the relationship between parents and children, but not because of the mere semantics that we can find in the substitution of the traditional term parental authority for that of parental responsibility, which is currently very much in vogue. Among other arguments in favor of change, I have heard about the original conception of the expression parental authority, which in ancient Rome gave a tyrannical position to the paterfamilias, that is, to the man who served as the head of the family group. However, no one would seem sensible to call the heart the entity responsible for pumping blood, just because the noun is of Latin origin and in Western culture it has been associated with feelings completely unrelated to the function of the organ, such as the predisposition to kindness ( heart of gold) and evil (he has no heart), or love.
”It is not, then, a matter of continents, but of content. Beyond the denomination that one wants to give to the institution, article 134 of the budding code, when relating the elements that make up parental responsibility, presents us with a wide catalog of duties, without a single one of its pronouncements serving as support for the authority that necessarily —in my opinion— parents must exercise over their children. Faced with the crisis of values that has lacerated us for three decades, it is urgent to strengthen family authority, because it is up to parents to direct their children in a social environment whose complexity increases by the day. It is of great concern, then, that subparagraph d) of article 145 authorizes the disobedience of children with respect to decisions of their parents that they consider contrary to their best interests. This is based on the progressive character granted by the legislator to the capacity and autonomy of minors, a basis from which it is proposed to arrive casuistically at the most important element, the so-called best interest of the minor, to whose efforts the relationship will be subject. of this with his parents. The vagueness of that expression will give rise to different interpretations and I can assert from my practical experience that it is already happening. Such empowerment of the minor could have very serious consequences for the stability of a family structure, I think. Given, furthermore, that in conflict situations a public entity will have to intervene as a third party, very little will remain after the harmony of a family and that rupture, which occurred at the level of the foundations, will spread throughout the edifice of our society. ”.
YP: “There are several positive aspects in the proposed Code, some of them are: the attention it pays to situations of domestic violence, the raising of the age for marriage to eighteen, the freedom of the contracting parties over the establishment of the economic regime of marriage, the paradigm shift regarding the guardianship of people with disabilities, the recognized importance of the best interests of the minor in the family, among others.
”However, there are other notably controversial aspects that deal with the institutions of marriage, adoption, some assumptions of multiparenthood and access to assisted human reproduction techniques (ART) that certainly deserve to stop and rethink them. To illustrate, I briefly note some problematic assumptions about the latter:
”One of the proposals of the Code consists of postmortem fertilization, that is, with the prior consent of the deceased partner, whoever survives can go within a year, extendable for two months, to the TRHA to conceive a child. son of the deceased This that may seem like a romantic possibility, in the biolegal order there are weighty objections, perhaps the most important lies, precisely, in the best interests of the minor (identity, care, education, well-being, etc.), because can it be considered that it is in the best interests of the minor to ensure that a child is conceived by a deliberately deceased parent?
”Another controversial case is the joint gestation in which a minimum of three and a maximum of up to five people (for now) can intervene, be these: two principals, two donors in the event that both principals were sterile, and the surrogate mother. The surrogate mother is a person and even with the help of her will it seems to be illegitimate to guarantee that she be treated as an object, as a mere incubator. As for the conceived, propitiate that such fragmentation in terms of her identity ties redounds in pursuit of her well-being? On the other hand, what would happen if the principals repent after the surrogate mother has become pregnant? They cannot force her to abort, even if they do not want her child to be born, but neither can they force her to take responsibility for a child she did not want for herself. What fate would the child have? Would both parents be forced to take responsibility for it? of a child they couldn’t ‘get rid of’ because it came in someone else’s womb (not to mention the bioethical objections to abortion) or would it be handed over to a state institution? Obviously, it seems that the child would be the least benefited in all this, since he is the only one who is guaranteed nothing, not even the affection that has been the flag of the Code”.
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Are Cuban families and society prepared to assume and implement this proposal?
M.R.: “I think not, because the family has had a structure and a system of relationships that have roots in previous centuries, all of which will suddenly change —at least legally— with the enactment of the intended code. If the basic cell is not ready to assimilate a transformation, neither can the whole of which it is a part. The magnitude of the changes is enormous, and their implementation does not respond, in my opinion, to a regular process of identification of the population with the new principles and values that the norm is the carrier of, except for specific aspects. Note that I speak of identification, not of acceptance, because it is one thing to understand what the matter is about and another to give consent. This might seem like a mere play on words, but it is something very serious, because without understanding it should not be denied or consented to, if we act in a politically responsible manner. It happens, however, that as the referendum places us before an inescapable dilemma, I consider it probable that not a few people will vote, either for or against, believing they understand, but without a real perception of the content.
”When referring to the aptitude to assume the new code, it is not good to limit ourselves to society as an interrelated human group, it is also necessary to take into account its institutional scope. If, under current conditions, our institutions remain indebted to important situations that have arisen in the family sphere, it is difficult to believe that they are prepared to successfully implement such great changes. Once again I speak from my experience and I would sincerely like to be wrong. The laws must attend to the dynamics of the transformations that have occurred in society, guaranteeing a suprastructural envelope in tune with the bases, not projecting towards a prescriptive dimension, organizing society according to the parameters that decision-makers consider it should adopt. This project does the first with respect to some issues, as for others it comes to serve as a transformation tool, when this happens, the actions of the institutions in charge of implementing legislative dictates become more complex. The collision between norms and social reality can lead to very unpleasant consequences, something about which there are plenty of experiences”.
Y.P.: “Legislation does not act by the fact of being approved. The law to operate requires education to create culture, which tends, in turn, to a different type of society than the one we have in terms of their relationships.
”The Cuban family and society have several challenges that are foreseen in the Code, one of them in relation to violence, unfortunately normalized in many homes and that is one of those points that, although our society is not prepared to change radically , yes you need to. The same happens with those affective kidnappings that are made of children, true emotional blackmail between adults, which deprive the minor of communication with other family members, something that must also be overcome.
”There are other aspects contained in the proposal that society questions whether it is a pendulum movement, so that in order to correct the discrimination of past times, it has reached the extreme of, instead of recognizing rights, conferring privileges, before the which there is no real social duty to guarantee them. Such is the case of access to ART for homoaffective couples under the banner of ‘public health’ and ‘reproductive rights’, when a couple thus composed would not even derive offspring, even in an optimal state of health, since the nature of the bond (the way in that operates the union) does not favor it. Therefore, in this case, it would not be a matter of assisting or restoring a capacity, but of conferring something (in this case ‘someone’) that would not correspond to it in any way.
”It should be said, in general, that although the need for a new Family Code is noted, our society is not prepared to assume the current one; Together with this, it should be emphasized that this proposal does not necessarily have to be the one that satisfies said need, it may be a different one that maintains all those positive elements and consensus and that overcomes the reasonably controversial aspects”.
In his opinion, not only as a professional, but also as a citizen, what kind of measures should be implemented or what paths to follow for the improvement and progress of Cuban society?
M.R.: “That question, which all the inhabitants of the Island have probably asked ourselves at some point, is beyond me. In the current conditions, any hint of improvement for our country undoubtedly depends on its economy, which is why I am not the ideal person to advise. It happens, however, that it is not possible to surgically separate economics from politics, as has sometimes been claimed, among other reasons because the economic results, good or bad, are the consequence of decision-making processes in charge of which are those in the nation. manage political affairs. It is then appropriate to treat the subject from different angles.
”I believe that in order to begin the journey in search of solutions, it is necessary to rethink structural aspects of the Cuban State, so that the public powers operate separately with interrelation mechanisms, capable of guaranteeing cooperation without affecting the necessary independence. It is true that by concentrating the functions of command, the possibility of success is also concentrated; but in return the same thing happens with respect to that of the error. A monocentric power structure is extremely beneficial in the success, because it guarantees a greater and immediate operability to its implementation; but in the face of error it is fatal because society has no way of counteracting it.
”The idea of the separation of powers, present in article XVI of the Declaration of the Rights of Man and the Citizen, immediately refers us to liberal thought, with Locke and, above all, Montesquieu, although it is even prior to them; but not because of that historical reference we should consider it the exclusive heritage of liberalism. Human creation at last, being valid, can be used perfectly among us. In a State that proclaims itself democratic, where the people are constitutionally entitled to sovereignty, nothing prevents them from exercising it through conveniently separated power bodies, with the capacity to complement each other in action, counteract each other in excess, and react constructively to the error.
“I think, from my ignorance, about what happened with the so-called ‘Ordering Task’. Regardless of the good intentions that encouraged those from the executive sphere who created it, its results and consequences are far from what was publicly announced on its thresholds. The implementation was immediate, as is often the case in a society that, being monolithic, can devote all its energies in pursuit of a specific goal, without discordant voices or actions. A polycentric society, on the other hand, could have reacted against something that at a particularly critical moment in our economy seemed, even to laymen, to be worrying. Then, as now with respect to the Family Code project, there was no place in the media for more than praiseworthy speech. A timely refutation would have been very useful, especially coming from specialized spheres capable of influencing public powers and leading them to act as necessary counterweights, something that is not possible with the current state structure. If, as the constitutional text affirms, we all share ownership of our nation’s sovereignty, thinking differently does not make us enemies, nor being against decisions adopted in the political sphere, whether it is an inflationary plan or of a coding project in the family environment. Sovereignty, after all, does not mean identity, it means freedom”.
“Cuba needs all Cubans and the path to a promising future goes through dialogue and respect. It is necessary to educate in respect first to the person and to reality, before ideas, because the best ideas will be born in that environment of respect; Spaces are needed where these ideas are born and do not die prematurely, but instead become viable. It will also be necessary to promote true participation and social protagonism to make the necessary changes happen, because without the possibility of authentic citizen involvement, the Island will only flounder in the sea aiming nowhere. This will not happen if solving problems becomes a slogan and not a reality. Thinking and doing Cuba is something that we owe to everyone and for the good of all”.