The new Families Code, conceived from a less dogmatic, human rights perspective will provide protection for all, regardless of the family model they choose to constructThe most significant problems evident today, which must be addressed in the new Families Code, are related to the recognition of all forms of family organization; parental and kinship relations, as well as protection of the elderly and disabled

As the new Constitution establishes, and of course logically, the way in which marriage is constituted is within the competence of the new Families Code, to be presented to the National Assembly of People's Power for approval in March of 2021.

The issue is a small part of the entire legal framework of the new Code - controversial, yes, but not predominant, much less decisive - and must be addressed in a manner consistent with contemporary family pluralism, not only because this is dictated by the Constitution, but because of new realities within Cuban families.

Dr. Ana María Álvarez-Tabío Albo, professor at the University of Havana Law School, explained to Granma that, after almost 45 years with the current, undeniably valuable Code, it is essential to introduce modifications that reflect experience gained in its implementation and provide solutions to complex family matters that today require immediate and specialized legal measures.

It is a matter, she insisted, of "perfecting and expanding multiple legal figures based on real situations that arise, democratic relations and strict equality, considering both emotional and biological issues, and the principles of dignity and solidarity that are inherent to this social group, as established in the current Constitution."

And everything begins, in her opinion, with the legal language used: "It must be understandable to its audience, inclusive, avoiding words that imply hierarchies, subordination or discrimination, in accordance with the Constitutional text and international human rights treaties on these matters ratified by Cuba."

In the professor's opinion, the most significant problems evident today, to be addressed in the new Code, are closely related to equality and recognition of all forms in which Cuban families are organized today; parental and kinship relationships; protection of the elderly and people in situations of disability; as well as family violence, among other issues.


Today, Dr. Álvarez-Tabío continued, there is no recognition of the diversity of family forms. The nuclear family established by a heterosexual married couple is the principal format protected and promoted, when it is no longer the most relevant way of organizing families, if we take into account low marriage rates and the trend toward more divorces.

With regard to the principle of equality and non-discrimination on the basis of sex, for example, it would be worthwhile, in her opinion, "to establish that parents determine, by mutual agreement, before civil registry authorities, the order of surnames, which once determined would be applied to all of the couple’s children. Maintaining preference for the paternal surname reproduces a custom imposed by patriarchal culture."


According to the professor, various forms of family organization co-exist within Cuban society, including consensual heterosexual or homosexual unions, single-parent families, as well as re-constituted and assembled families, impacting parental roles played by members of the family group - other than the parents - whether or not they are biologically related.

We are talking, she explains, about new husbands/wives or partners of parents, who are involved in the training and education of children who are not their own; or about grandparents and other relatives, who are today deprived of communication with their grandchildren or nephews and do not have the right to turn to the courts to establish a communication regime.

Nor does current law provide "a legal solution to cases of grandmothers, uncles, step-parents... who have minors in their care, because their parents live outside the country or are on international missions, and cannot represent these minors or make important legal decisions, since they are not formally recognized.

"On the contrary, if these people do not take care of the minors appropriately, there is no legal mechanism to oblige them to do so."

For this reason, she believes, "The institutionality of parental responsibility must be improved: custody and care, which could be granted temporarily to third parties or shared; as well as the extension of formulas and ways of communication, which would include other relatives beyond parents."

Similarly, she adds, "Due to the very limited presence of adoption in Cuba, it is necessary to rethink associated requirements, facilitate formalities and avoid any obstacles that could be discriminatory, including age, skin color and disability, along with the tendency to give the biological factor more weight than affection issues.

"In summary: kinship and filiation must be based on bonds created within chosen relationships, that is, from the viewpoint of the people who choose to be parents, and promote affection, socio-affectivity as the determining element in family relationships."


In the words of Ana María Álvarez-Tabío, facing the phenomenon of an aging population today is "very difficult for families, if guardianship is maintained as the only institution for the care and protection of the elderly, also impacting people with disabilities, who require support, but not invalidation of their legal capacity."

She insists on the urgent need to introduce legal figures in Cuban legislation to allow other support mechanisms for the protection of persons with disabilities and older adults, within the family environment, without neglecting due legal protection for caregivers.

The social, economic and demographic reality in Cuba, she notes, calls for the protection of the rights of these persons, taking into account their well-being, their private autonomy, self-determination and personal financing of their possible dependence, in light of international instruments on these issues and the insertion of various protective alternatives.


Another issue that should not be overlooked, the expert emphasizes, is "violence within families, which requires establishing preventative mechanisms and protection for victims.

"This logically includes the anticipation of consequences caused by psychological, physical, sexual, patrimonial, and economic abuse, and even the use of under-aged children as workers in family businesses."

Given the growing presence of international elements in Cuban families, Álvarez-Tabío notes, needed are regulations taking into consideration private international law regarding families. It is also appropriate to develop the rights of children and adolescents within families, in accordance with the Convention on the Rights of the Child, she added.

The debate on the new Families Code will continue for some time, but if there is one thing that can already be agreed upon, it is the urgent need for regulations conceived from a less dogmatic, human rights perspective, that will provide just protection for all. (Granma)