Referendum in Cuba on the 'Code of Affection'

By Rosa Miriam Elizalde – Aug 4, 2022

Cuba’s Code of Families in Cuba will be subjected to a referendum on September 25, following months of popular debate. There are many strong arguments in its favor, and little of what has been said against it can be seriously considered. These criticisms have come from the perspective of religious dogmas (which should be exclusive to those who practice such beliefs and not imposed on a non-confessional society), prejudices, ignorance, or simply outright falsehoods.

It has been called the “code of affection” because it consecrates the affective nexus as a legal value in contrast to the considerations of the Napoleonic code, which is the main source of inspiration for Latin American civil norms, and which conceives of heterosexual marriage, synonymous with family, as a closed institution that is difficult to modify. However, as we know, there are affective unions of various forms, whether or not they are recognized by law: single-parent families, reconstituted, traditional, childless, with adopted children… and also, homoparental, formed by two fathers or two mothers and their children.

The new code, approved in the first instance by the Cuban Parliament, which must pass through public scrutiny, would legalize same-sex marriage, and civil unions would allow any couple to adopt children. It would promote more rights for the elderly and the equitable distribution of domestic responsibilities. It would legitimize prenuptial agreements, common-law unions, joint pregnancies (surrogacy, not for profit) and determining by common agreement the order of surnames, the number of children, and the time when one wishes to have them. Parents would have “responsibility” instead of “custody” of the children, and would be obliged to be “respectful of the dignity and physical and psychological integrity of children and adolescents,” among other provisions.

For more than half a century, Cuba has been a regional leader in women’s rights. Women head almost 50% of households and constitute 60% of professionals, and have had the right to abortion since 1961, and free access to abortion since 1965. They can claim up to two years of maternity leave, and receive the same salary as men in similar positions. However, not all rights have been endorsed or dialogued with the demands and daily life of the country.

For example, in Cuba, adoption levels are very low. The Ministry of Public Health has a program of “attention to the infertile couple,” which is exclusive: only a heterosexual couple can receive treatment for reasons of infertility. The Family Code would clear the procedures for adoption and would open the possibility of using an assisted human reproduction technique for couples who break with the binary conception. A child could have two fathers and a mother, or two mothers and a father, if the family so decides.

This norm is the only one that will go to a referendum among the 70 laws updated with the new Cuban Constitution, promulgated in 2019, which states that discrimination based on human conditions or personal circumstances is not admissible as it is detrimental to the dignity of the person.

The old version, passed in 1976, established that marriage was the union “between a man and a woman” and, therefore, legitimized for decades a version of “Leninist machismo” or “Victorian Marxism,” as the poet Eliseo Diego called it, whose model was the picture of the mother, the father, and two children, heterosexual and stable, which prevented the definitive dismantling of the sexist system in which the family could end up being as reactionary, oppressive, and conservative as anywhere else.

However, in Cuba, as in other countries, for decades there has been a powerful tension about what to do in this area: to design isolated policies that punctually lift discriminatory formulas, as has been done effectively, or to aim at the structural transformation of gender relations. The Family Code finally resolves this dilemma in which, except during gestation and the early care of the infant, there is nothing gender-conditioned in the raising of children, in the care of the elderly and the sick, in the surname we bear and, above all, in the love for another human being.

Obviously, laws alone are not enough to bring about change, but they do push prevention policies, protect victims, and prepare children for a world of equality. The big problem for all of us, whether we feel we are men or women, is not to learn, but to unlearn machismo, even when there is a rule of law, when we try to achieve the greatest possible justice and when we have made a revolution.

In addition, in Cuba a referendum will have the last word.

(Resumen Latinoamericano – English)