The father in Cuban legislation: old and new debates

An analysis on paternity in Cuba, from its historic perspective to the current legislative transformations, centredon the Family Law.

Foto: Jorge Luis Baños_IPS

The study of paternity based on the different branches of social sciences nowadays is of great interest and usefulness, since there are insufficient theoretical-scientific frameworks that take into account the father as the central point of reflection and that serve as a guide with respect to the group of questions interlaced around that social figure at present.Paternity, understood as a sociocultural construction, is the place assigned to the father, the responsibility, the wish to be a father and the experiences that accompany its exercise, which vary depending on the sociocultural contexts.[1]

As a social more than biological figure, the father is going through a time of changes, characterised by the failure in the model of hegemonic patriarchal paternity and the transit toward other patterns that adopt new forms and question the father as the figure that historically has had as characteristic features: authority, severity, astuteness, being the provider, among others. We could highlight among the multiple causes that led to this transit: the impact of the incorporation of women into the public sphere as a labour space, the considerable increase of divorce rates worldwide (an aspect that has had as a consequence the appearance of new family models with the absence of the father), the origin and development of feminist theory that champions the establishment of equity between women and men, the awakening of the studies on masculinities, among others.

 

Broadly speaking, this work presents the historic-legislative tour of the parent (the father) in Cuba, given that it is opportune to know the way in which we have reached the legislative transformations that exist today on the island and that, somehow, contribute to a better performance.Forthe analysis we will centre on the Family Law, the branch that par excellence analyses the framework in which the spouses perform their respective roles of mother and father, also taking into account the usefulness that other aspects of the Law can have for a more detailed analysis of the subject. It should be noted that in Sociology – a discipline in which I have been trained – the method of comparing family reality with Family Law was greatly used[2] in order to infer the historic changes that take place inside them, presupposing the important role the law plays in the formation of any social order and vice versa.

 

Codes, laws, decrees and fathers: a bit of history

 

When the discoverers of the New World arrived to the island they found, among so many wonders, a socioeconomic formation different from the one they had left behind in Europe and in their own country.Spain was a feudal power, with a defined organisation, strong and religious, while Cuba was still at the stage of a primitive community.As Savona second mariner Miguel de Cúneosaid in 1493: “… there existed primitive families with a development very similar to the punalua families described by Morgan and Engels.”[3]This reality, different for the conquistadors, made it necessary to adopt foreign legislations to resolvethe legal conflicts related to the legal condition of the entrusted indigenous people, theirfamily and matrimonial customs. It was then that Spanish Law played a predominant role, which can be confirmed in the reading the established legislation, which expresses the latent wish of protecting the Catholic religious marriage contracted in Spain by the colonisers, as well as that of bringing about the free election for marriage between single Spaniards and women of different races, as long as they had converted to Catholicism.

 

The incorporation of Spanish Law to our country represented some restrictions in terms of the civil capacity of women, who remained subject to a sort of perpetual guardianship by the family males (fathers, older brothers, male relatives) and later by the husband. In this way it was conceived that a patriarch was the head of that institution, first the father, brother or relative, after the husband or son, putting into practice the theoretical reality of a concept of family that is defined as “the group of slaves belonging to one same man.”[4]Moreover, the children of the matrimony were left entirely under the authority of the head of family (man) and a visible form of belonging in naming them (the wife is included), for example:Margara de Rodríguez, Víctor de Ocampo. In short, that period was characterised by the progressive settlement of a foreign culture that slowly replaced a primitive “punalua” social system by another impregnated with the patriarchal aspects imported by the first colonisers who settled on the island since the first half of the 17th century, for whom the family constituted a refuge against fear, a conception rooted to more conservative customs and traditions, defenders of the same patriarchal status.

 

Colonial Cuba continued taking Catholic matrimony as a paradigm, even for the indigenous people; a legislation was brought out in relation to the requisites for its celebration, among which we can find: paternal consent for those less than 25 years old, the woman’s dowry, the husband’s coins.[5]It was not until 1869, in the Guáimaro Constitution, that laws started being passed reflecting the need to see the nuptial event as a civil contract, depriving it of the religious sense prevailing until then. That aspect is repeated in the Jimaguayú Constitution (1896) and turns those constitutions into the reflection of the most advanced thinking in the philosophical concepts of the Enlightenment and the French Revolution.

 

Moreover, around those years the Spanish Civil Code spread throughout the island and comes into force on November 5, 1889. It referred, in its content, to the legal relations derived from matrimony in terms of persons, goods, spouses, paternity, filiation and the exercise of guardianship. It established two forms of matrimony: the canonical and the civil, which required the minimum age of 23 years to contract it and, if done before that, the prior need of a permit by the fathers or tutors.

 

The investigation with respect to illegitimate paternity was not admitted, thus the condition of legitimacy was left under the reins of the parent, in case the children had been born out of wedlock.This aspect confirms the intentions of protecting the legitimately constituted family.In the same way, from the legal point of view, the leading role in the exercise of the guardianshipof the children was the father and only by his defaultcould the mother assume it. From the legislative point of view, the father enjoyed certain privileges with respect to the mother, a fact that is confirmed in relation to the granting of licenses for the matrimony of legitimate children, the administration of family goods, the exercise of guardianship, etc.[6]Meanwhile, her position was reaffirmed assubordinate to the husband, “representative, administrator of good and head of the family nucleus.”

 

The U.S. military intervention in Cuba took place in the late 19th and early 20th centuries, a historic event that had great repercussion on Family Law, especially regarding the regulations for matrimony existing in the 1889 Civil Code, which were transformed based on new military orders. Among the interventionist laws that had the most influence on paternal-filial relations we find the one referring to the limitation to abandon the paternal home (of the father or mother) of the daughters and sons less than 21 years of age (age of majority); however, for the women the limitations were even greater, since they could only leave home before the age of 23 through matrimony, even if they had already reached the majority of age before the law.[7]

 

The Constitution of 1940 is considered one of the most advanced in relation to the rights of children, since it abolished all description of the nature of the filiation with respect to the comparison of legitimate and illegitimate children and admitted the investigation of the paternity. However, the official legislative regulation at times was left behind in practice. Example: the illegitimate children (called in the Constitution children out of wedlock) officially had the same rights and duties as those in wedlock, but they continued being relegated in the right to the legitimate family patrimony, that is to say, with respect to the inheritance.[8]On the other hand, Law 9 of 1950, called “Law of Women’s Civil Comparison,” modified what was said with respect to the rights and obligations between husband and wife, and established, through article57 of the Civil Code, the equality in the exercise of both parents’ guardianship and annulled all regulations that would limit women’s full legal capacity.[9]Butthe constitution’s wishes for equality and those of the complementary law did not go beyond the official legal limits; the economic and socio-classist structure of that society, strongly rooted in an androcentric culture, opposed it.

 

We can summarise that, in the neo-colonial period, the Cuban family was characterised by the almost absolute dominion of the manover the woman, given the maximum authority he represented and exercised as head of the family, despite the proclamation of equality that existed in the laws of the moment.Although the changes started being produced slowly and gradually, it is opportune to highlight the contribution of these legislative transformations, for the legal establishment of “equality” of conditions in the exercise of maternity and paternity for both spouses, as well as for the establishment of the equality previewed among the children (legitimate as well as illegitimate).

The socioeconomic, historic and cultural conditions existing in our country before the triumph of the Revolution exercised great influence on the fact that the father was considered the legal head of the family, breadwinner and supreme authority, to the extent that the opportunities for the labour insertion were considerably greater and better in relation to that of women (while in 1958 there were 194,000 working women,in 1975 the figure was 647,000 integrated into carrying out multiple activities[10]). This situation served as the perfect climateforwomen to generally be mainly responsible for the housework and the raising of the children, while the father contributed the principal economic sustenance to the family.

 

In 1959 a political rupture occurred in the country which had the objective of doing away with the group of existing inequalities. Among the principal factors that favoured it we can cite[11]:

 

  • The radical transformation of the relations of ownership and of civil society-political society relations.
  • The group of policies and popular measures adopted by the revolutionary government.
  • The high demand for social participation.
  • The increasing social mobility.
  • Urbanisation.
  • Women’s incorporation into wage-earning work.

 

These changes had a bearing on the progressive disappearance of the pre-existing social order through the deconstruction of its social, economic, legal and state structure. This intention of creating a fairer reality, where equality of rights and duties would prevail, is thus collected in our Constitution:

 

“Discrimination based on race, colour of skin, sex, national origin, religious creeds, or anyother type offending human dignity, is prohibited and punished by the law….” “Women and men enjoy equal economic, political, cultural, social, and family rights.”

 

Excerpts like these reflect, moreover, the aim of promoting family nuclei in which both spouses have full similarity of duties and rights; that is to say, that they have equal conditions and opportunities to care for the home and the integral formation of the children.

 

Plus, where legal equality reaches its true realisation is in that referring to the relation of equality of all children, no matter the civil state of the parents; which thus breaks the principal link of bourgeois Law, “whose reason for being fundamental (although it is covered with apparent official legal equality) is to maintain the inheritance privileges within the legitimately constituted families.”[12]In Chapter IV, Article 37 of the Constitution, we find: “All children have the same rights, regardless of being born in or out of wedlock. Distinctions regarding a child’s filiation are abolished.No statement shall be made either with regard to the difference in birth or the civil status of the parents in the registration of the child’s birth or in any other documents that mention paternity.” The reading of this article can seem similar to preceding ones in the sense of the equality it promotes between spouses and between legitimate and illegitimate children;[13]however, the historic social context in which it is now presented has changed and this reason is sufficient for its sense and the way in which it is applied to also be different.

 

In terms of the family, the mass of the domestic economy starts being transformed into a socialist economy. With this the family started losing the economic sense that until then predominated for its constitution and aspects like morals and other spiritual interests of the married couple become more important. “Individual sexual love” (a non-legal category used by Engels in his writings) starts being taken as the essential element to marry, based on mutual aid and respect. A show of the importance the Cuban government grants to the institution of the family is the 1975 Family Code, in which the regulatory legislative norms of this institution appear. Approved on February 14, 1975 and put into force on March 8, 1975,[14]it has among its principal objectives:

 

-The strengthening of the family and of the ties of affection, respect and aid among its members.

– The strengthening of the matrimony, founded on the absolute equality of rights and duties of both spouses.

-The parents’ most effective compliance of their obligations with respect to the protection, moral formation and education of the children.

 

Among the articles that comprise it and promote a responsible maternal and paternal performance, we find the following:

 

Article 82: “Minors are under the guardianship of their parents.”

 

Article 83: “The exercise of guardianship corresponds jointly to both parents.”

 

It is well defined in them that the participation in the exercise of guardianship corresponds to both parents and in that sense their responsibilities will be:

 

Keeping the children under their guardianship and care; making every possible effort to provide them with a stable home and adequate nourishment; caring for their healthand personal hygiene; providing them with the means of recreation fitting their age which are within their possibilities; giving them the proper protection; seeing to their good behaviour and cooperating with the authorities in order to overcome any situation or environmental factor that may have an unfavourable effect on their training and development; seeing to the education of their children; inculcating them with the love for learning; seeing to it that they attend school; seeing to their adequate technical, scientific and cultural improvement in keeping with their aptitude and vocation and the demands posed by the country’s development; and collaborating with the educational authorities in school programmes and activities; training their children to be useful citizens; inculcating them with the love for their country, respect for the country’s symbols and their country’s values, the spirit of internationalism, the standards of coexistence, and the socialist morality; respect for social property and the property and personal rights of others; arousing the respect of their children by their attitude toward them; and teaching them to respect the authorities, their teachers and every other person; administering and caring for their children’s property; seeing to it that their children use and enjoy in a proper manner whatever property they have; and not to sell, exchange or give any such property except in the interest of the children and pursuant to the requisite of this Code; representing their childrenin every legal action or arrangement in which they are involved; giving their authorisation in those cases where full capacity for taking action is required; and taking action opportunely and in due fashion to defend the children’s interests and property. (SeeArticle 85 of the cited Code)

 

 

However, in this Code we find some details that escape the egalitarian balance because of what it advocates, to prioritise the maternal figure under certain circumstances. This aspect can be confirmed in the articles referring to the Guardianship and Care of the minors, such as:

 

Article 88: “Guardianship and care of the children will be arranged by the parents in those cases when they do not live together.”

 

Article 89: “In case there is no arrangement or the arrangement is detrimental to the material or moral interests of the children, the question will be settled by the competent court, which will decide on the basis of what is more beneficial to the minors. Under equal conditions, the court will generally decide that the children be left under the care of the parent in whose company they have been until the disagreement arose. Preference is given to the mother in the case that the children lived with both father and mother, unless special reasons make another solution advisable.”

 

We should then ask the following questions:

 

Why give preference to the mother? Which then are those “special” reasonswhich under equal conditions one would have to assess?

 

Some of the consulted works criticise these prerogatives, since while it is true that there are certain biological factors that benefit the mother in the first stage of the children’s development [because she is the one who shelters them during the process of gestation, giving birth to them and bread feeding them during the first months]; the conditions are later equalled to the extent that both parents are legally under equal conditions for their full performance. The aspects pointed out are no more than signs that make it possible to observe clearly the incidence of the patriarchal culture in the manner in which our island’s legislative body is constructed, since, despite the intentions of the government and of other organisations like the Federation of Cuban Women (FMC), we still find very harmful gender gaps for men as well as for women.

 

The centrality given to the maternal figure also became evident with the establishment of LawNo.1263 of January 16, 1974, “Women Workers’ Maternity Law,” which guarantees and protects her maternity through a financial assistance that especially facilitates: her medical care, maternity leave before and after giving birth, while breast feeding and care of the children, placing emphasis on the responsibility of the administrations of the workplaces in charge of making the payment. While this represents one of the greatest achievements of the Revolution for women, the manner in which the text is presented pushes the fathers to the background in which it is much more difficult for them to have access to equal conditions with respect to the care the children.

 

In 1991, through Resolution No.10 of the Minister President of the Labour and Social Security Committee, today the Labour and Social Security Ministry, new changes were made. It is established that the working woman who because of the care of her child was unable to incorporate herself to work once the period of the Maternity Leave expired, can optionally receive a social assistance amounting to 60 per cent of her wage. If the child reaches six monthsof age and the woman worker could not incorporate herself to work, she would have the right to a non-paid leave, conserving the right to her job post until the child is a year old. Ten years later, because of a presentation by the workers’ movement in its 18th Congress, Resolution No. 11 of April 30, 2001 is approved, annulling the previous one and establishing an extension of the optional granting of social assistance amounting to 60 per cent of the wagestarting with the expiration date of the postnatal leave and until the child is a year old, or before that date, if the mother incorporates herself to work.[15]

 

Legislative changes likes those previously mentioned were a great step forward in relationto the aims of excellence in the care and protection of the rights of the new generations and their mothers. These transformations have been taking place parallel to those occurring in contemporary Cuban society, confirming:the considerable increase in consensual unions, the increase of composed families, the appearance and the development of the “single mother” families, the novelty of independent production, the growth in the existing divorce rate, the increase of homosexual unions and the development of the feminist movement in the country, among others. However, they have undoubtedly had a repercussion on the models of socialised paternity. One observes a tendency toward the autocratic and patriarchal family, toward a type of family where the dynamics becomes more flexible and therefore there is a greater range for the exchange of roles:

 

-Men have stopped being the only ones that contribute qualification, incomes and information about the home’s non-domestic sphere.[16]

-There is a greater participation in family life of all its members.

-The fathers feel more involved in the roles they exercise, although the paternal activity continues being relegated with respect to the maternal.

-The existence of families that, in current Cuban aspects, carry out experiments regarding the group pattern in which they live.[17]

 

These transformations have an influence on the development of a new type of fathers or sustained in the equity of functions with respect to the mothers, closer to the filial expectations (that they be friends, advisers, communicative, loving and humane), which share the household chores with their wives and also take care of the children and their maintenance as the women do.

 

The father in the new century: between socio-legal advances and challenges

 

The acquired experiences and the studies carried out regarding maternity, paternity and the care of the children advised introducing in the early 21st century some modifications and additions to the legislation in force. Thus it was on August 13, 2003 that Law 234 on Working Women’s Maternity was decreed, after arduous months of joint work between the FMC, the Central Organisation of Cuban Trade Unions and the Labour and Social Security Ministry. It emerged with the objective of establishing regulations that would contribute to the adequate care of children by their mothers and fathers, and even to facilitate their actions in case they are working women.[18]It should be pointed out that it was the FMC which made this important and transcendental proposal made during its 3rd Congress (1974), when the favourable context for its implementation and social acceptance still didn’t exist.

 

This decree had the transcendent importance of recognising the rights of the father to care for their children in the first stage and on other subsequent ones (complementary leaves and non-paid leaves), conserving their worker’s rights.The entire Decree-Law 234 is geared at the establishment of equality of roles between mothers and fathers after the first months of the birth, where for biological reasons the mothers become indispensable for the feeding of the new born. Following we will comment some of the articles appearing in this Decree and which undoubtedly are very revolutionary:

 

Article 16: “Once concluded the postnatal leave, as well as the maternal breast-feeding stage which should be guaranteed to favour the children’s best development, the mother and father can decide which one of them will care for the child, the way in which this responsibility will be distributed until the first year of age and who will receive the social assistance established in the previous article, notifying the decision to the administration of the workplace of each one of them.” The procedure to follow in these cases and the amount of social assistance are also established.

 

This article, one of the principal ones in the decree, clearly presents the intentions that, through this legislative transformation, the fathers are more involved in the careof the children during the first stage of their lives, which offers them the possibility of being able to opt for a paid leave. Its appearance was a significant step forward, although as we know, the lack of knowledge of any of these changes[19]and the weight of a patriarchal culture that limits a committed paternity make the equity aimed for rather difficult.

 

Then comes Article 10: “In case of the death of the mother while she ison maternity leave, the father of the child, if he is a worker, has the right to a paid leave for the duration of the time he misses work until the expiration date of the referred period of leave, if he meets the requirements demanded in Article 4. Moreover, heis fit to enjoy the social assistance and the complementary leaves that the mother would have had the right to. The father who for fully justifiable reasons cannot assume this responsibility can expressly delegate the enjoyment of this leave and the social assistance to the grandmother, grandfather, sister or brother, maternal or paternal, or any other relative who is a worker who is obligated to feed the minor, until he or she is a year old.”

 

Through this section, tasks that previously socially fell to themothers are currently legally stipulatedfor both spouses.[20]This article alludes not only to those indirectly involved in the exercise of maternity/paternity, since it includes the possibility of those functions being delegated to other members of the family linked to the minor’s development, like: grandmothersor grandfather, brothers or sisters or other relatives, in case the parents so decide it. Which is why, it contributes in some way to encouraging a family dynamicsof more participation and commitment,with the conscientious involvement of all in the care of the new generations.

 

These two articles, one on the case of the possible death of the mother and the other that deals with the option of mutual agreement in relation to the family member who will receive the paid leave, show the intention of encouraging the rapport of the socially “stipulated” sexual roles for the contribution of the optimum development of the new generations and establishing the resemblance of duties and rights of each and all the family members to favour the functionality of its dynamics. But this decree not only alludes to the first months of life, but also offers as a right of both parents, in order to guarantee the joint involvement in the minor’s development, the following:

 

Article 19: In order to guarantee the care and treatment of the child during the first year of life, the right of the working mother or father is established to enjoy one day of paid leave every month for taking the child to the paediatrics health centre.

 

The decree also regulates the responsibility of both parents for the special care of children with motor physical or mental handicaps: in its Article 23 the following is stipulated: “In the case of special situations, when the child reaches one year of age, if the working mother or father due to the care they must give the child cannot return to their job post for justified reasons, they can request from the administration a non-paid leave, which in no case will exceed three months. If this extension expires, the administration can, on its initiative, terminate the labour relationship in keeping with the legislation in force.”

 

As we can see, this legislative proposal approved more than a decade ago in Cuba, is rather opportune, since it is geared at eliminating from our context paternal practices that are to the detriment of the full and active developmentof fathers of a new type and, in that sense, does away with some of the legislative obstacles that hinder this change. Despite the fact that the number of fathers who have resorted to the decree is relatively small compared to what was hoped for,22there is no doubt about the advance the creation and implementation of a legal framework like this one supposes. The experience is encouraging not just for the Latin American context but also for the world since it resizes paternity and opens for them new paths for it to be lived in a more involved manner.

 

A new step in that sense was taken last February 10, 2017, when the new modifications of this legal framework were announced. That day, with the publication of Decree Law 339/ 2016, some of the regulations established in Decrees 234/2003 and 285/2011 were changed. The objective of these changes, as it was announced, is to expand the previously established guarantees and to guarantee a greater family integration. With this new move the norms of the patriarchal culture continue being transgressed, favouring in this way the exercise of a more empathic paternity and the greater participation of working mothers in public dynamics, in a context where they play a leading role. In the new framework, the recognition of women working in non-state spaces or those who have more than one job, which are more frequent circumstances at present, as possible beneficiaries is considered especially relevant.

 

With regards to the father figure, it should be pointed out that the new decree is the continuity of those that preceded it. The possibilities offered to them include some of the following:

 

  • Their protection is established in the case of the death of the mother (Article 1b).
  • Social assistance can be applied from the date the postnatal leave expires and until the minor reaches the first year of life. The amount to be received is estimated according to the time worked and the wages earned (Articles 4 and 27 b).
  • Once the periods of paid leave conclude or not, he has the right to reincorporate into his workplace and to occupy his post (Article 9).
  • In case of the mother’s death at childbirth or within the period of the postnatal leave, he has the right to the financial and social assistance which the mother did not enjoy to care for the minor, independently of the pension generated due to her death (Article 22).
  • Until the minor is one year of age, the mother or father incorporated to work, depending on the case, has the right to enjoy one daily paid hour for breast feeding and one day of paid leave per month to go to the paediatric health care centre (Article 31).
  • When the minor reaches one year of age, if because of the care of the child the mother or the father, depending on the case, cannot be incorporated to their work post, they have the right to a non-paid leave starting the date of the expiration of the social assistance, which the employer is obliged to grant for the period of three months, and which when expires the mother or father can enjoy their accumulated vacation time (Article 32).
  • The working father of a minor who suffers from a disease vouched for by a medical certificate, or a physical, mental or sensorial handicapendorsed by a medical record that requires special attention, he can resort to a non-paid leave starting the first year to three years of life of the minor (Article 35).

 

In addition to these possibilities, regarding the most relevant transformations with respect to the previous frameworks the following must be pointed out:

 

  1. The inclusion of the father as direct objective. Compared to previous regulations, in which it was established that the objective was “to give rights to women workers and protect their maternity” (Article 1,Decree Laws 234 and 285), in Article 3 of Decree 339 the intention appears of: “to grant rights to the working mother and father of the state sector, in keeping with each one of them, to favour the shared responsibility with the family in the care and attention given to the minors.” This change is considered significant since it turns the father into the principal subject of the benefits that are established. The symbolic and real value that these transformations have in the body of the text should be pointed out, since it places him in a leading role starting the first lines.
  2. The possibility that he can assign another working family member to be the beneficiary of this right in case of the death of the mother and that he cannot be in charge of the care of the children, without the necessary existence of those “fully justified circumstances” stipulated in Article 10 of the Decree-Law 234. The current proposal collects in its Article 23, in the case of the mother’s death: “The father can determine which established rights are exercised by the grandmother, grandfather, sister or brother, maternal or paternal, or any other relative, until the minor is one year old.”This fact is believed to be pertinent, taking into account the importance that at times other close relatives have for the children, especially in the current context, in which extended families predominate.

 

However, there still remain aspects to be reviewed to achieve a legal text that reflects, from beginning to end, the intention of promoting this culture of equity among the parents and the greater participation of men in the care of their children. Such as:

 

The very title of the decree: “Working Women’s Maternity Leave.”This is an aspect we have pointed out on previous occasions, since the omission of the father in this title can individualise his condition as a possible beneficiary. In this sense the introduction of a change in the name of this decree is opportune, so that the inclusive criteria later presented in the body of the text is reflected.

 

  1. The relevance given to the mother’s death as a special circumstance for the fathers to be able to transgress the norms and enjoy the social assistance. In the face of this reality, we would have to ask ourselves the following questions: Why predetermine that certain allocations to the father are pertinent only when the mother is absent or has died? Wouldn’t it be more convenient to think and promote the negotiation of to whom the assistance will be given when both parents have the necessary conditions to devote themselves to the care of the children?
  2. Moreover, it is opportune to think of the possibility of establishing that the father can ask for a paid pre- and postnatal leaveof at least two weeks before and after the birth, as established in Article 6 of the decree. The exhaustion of the women at the term of their pregnancy, the greater amount of doctor’s visits during this last period and the intensity of the preparations during the final stage of the pregnancy, as well as the complexity of the process of recovery after giving birth, deserve that this proposal be considered, since it would be very correct and would guarantee a greater involvement of the father, not just in the care of the child, but also that of his spouse, without having to depend on the favours of his employers or the fear that he could be sanctioned in his workplace.

 

Notes for a final reflection…..

 

This work has made it possible to study in depth the treatment the father has received in the Cuban legislative history and the implications this has had for the children and the figure of the mother, based on the analysis of the principal legal transformations of which the institution of the family has been the object of during the years.It is opportune to highlight the necessary application of the gender focus to achieve the objective of the analysis, since it is impossible to dissociate the paternal from the maternal reality, since they are interrelated as part of a binary and relational category.

 

While at present we have a Family Code and some Decrees like the 339 of 2016, which tend to favourgender equity and present the necessary assimilation of equal duties and rights for both spouses – in their respective roles of mothers and fathers -, not all the preceding ones defended that, while they limited this comparison and reaffirmed the father’s legal leading role (on whom even the condition of legitimacy of the children depended), while the mother was granted, because of the patriarchal social stereotypes, the role of caregiver and directly responsible for the wellbeing of the children.

 

The positive impact that the laws have for the equity for which we are fighting is true, but the changes in the ideas, opinions, principles, values and the forms in which these are expressed takes place in a slower way and, therefore, the real equality of opportunities for both sexes is still a challenge; this is why we must continue working in favour of the transformation of the existing laws, the inclusion of other new ones and their being made public.

 

This effort will strengthen carrying out a more committed, responsible and closer to the children paternal role.To attain this, we are fortunate to have the effort of progressive leaders, activists, intellectuals and persons who have an advanced way of thinking and work in the eradication of those differentiating vestiges that hinder the total establishment of a balance between sexes. (2017).

 

[1]Bonino, Luis: “Las nuevaspaternidades”, lecture given at the CECAM, Havana, 2000.

[2] Simpson, George: “The Conjugal Family”, in The American Journal of Sociology. Volume LXX, Number 5, March 1965.

[3]The term is of Hawaiian origin and was used byLewis H. Morgan to describe the families that hypothetically had emerged in which the husbands are of the same kinship group and the wives are members of another kinship group.

4Mesa Castillo, Olga: Derecho de Familia (Modulo 1), Félix Varela publishers, Havana, 2002, p.30.

5Comes from the word “famulus,”which means “domestic servant.”

6The dowry and the coins are bestowals made to the woman and man, respectively, for the matrimony.It is useful to highlight that the presence of the man’s legal authority over his wife and her possessions incapacitated the woman from carrying out any administration of goods without her husband’s prior authorisation.

7Mesa Castillo, Olga: “Participación y estatus jurídico-político de las mujeres en Cuba Colonial (1492-1899)”, documentsin digital formatfortheMaster’sDegree in GenderStudies, Women’sChair, University of Havana, 2008, p.12.

8Ibid, p.43.

9The inequalities among children were governed by the matrimony.

10Mesa Castillo, Olga: “Participación y …”, ob. cit., p. 45.

11AlbeloGinnart, Regla et al.: Historia de Cuba, Pueblo y Educación publishers, Havana, 1986, p 548.

12Rivero Pino, Ramón: “El rol paterno. Su problemática en Cuba” in Colectivo de autores Sociología y Trabajo Social Aplicado, Félix Varela publishers, Havana, 2003, p. 198.

 

13Mesa Castillo, Olga: Derecho de Familia…ob.cit., p.35.

14Family Code.Law 1289 of February 14, 1975. Noted and agreed upon by the Justice Ministry, April 1987.

15Some modifications have been made to the 1975 Family Code through Decree Law # 76 of 1984; as well as the modifications and annulments carried out by Law # 51: 1985 Law of the Civil State Registry, among others.

16Garrudo, Mercedes, Yamila González and Tamara Columbié: “Papel de la Federación de MujeresCubanas en la redacción y modificación de la legislacióncubana a lo largo de estos 45 años”, Documents in digital format for the Master’s Degree in Gender Studies, Women’s Chair, University of Havana, 2008, p. 7.

 

17RiveroPino, Ramón: “El rolpaterno…”, ob. cit., p.35.

18Ibid, p.200.

19This Law 234 annulsLaw No. 1263 “Working Women’s Maternity Leave” of January 14, 1974 and all the regulations contrary to what is established in the present Decree-Law.

20Studies showthere is a great lack of knowledge by the fathers about the approval and putting into practice of Decree Law234, since only 56.09 percentout of a total of 41 said they knew of it, while 43.90 per cent was alien to these transformations that have to do with their role (SeeRomero Almodóvar, Magela: “Padre nuestroqueestás…dónde? El rolpaterno. Un estudio con padrespresentes”, Diploma Thesis, Departmentof Sociology, University of Havana, 2005).

21The term spouses, according to Dr. Olga Mesa Castillo, limits the content of this law since it only includes those parents with a legally formalised sexual union (matrimony) and the registered statistics say that more than 70 per cent of the birth certificates in Cuba are of single mothers;thus, it is the father but not the “legal” spouse who is, in the best of cases, who is at the side of the child (specifications made by Dr. Olga Mesa Castillo in an interview with the author).

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