The Family Code bill, as it stands, is interventionist, conservative and neoliberal
Knowledgeable, passionate and important reflections
about several aspects of the new Family Code legislation
now undergoing the approval process in the National Assembly.
María Teresa Blandón Gadea
I’m going to speak to you as a feminist, although I run the risk that some will think that means I hate men. We’re often told that feminism is the other face of machismo, but that’s a very serious error. Feminists get along well with both women and men who are willing to learn, grow and break out of the machista culture and mandates that the patriarchy has imposed on us all, men and women alike. As a feminist, I’m convinced that if a proposal for transformation, a political or legal proposal and theoretical thinking don’t take into account the weight that unequal gender relations have on our lives, it’s partial, incomplete and suspect. Any proposal that forgets that society has been organized inequitably on the basis of gender, and thus isn’t committed to equality between men and women, isn’t sufficiently above-board because gender runs through every aspect of our lives. It’s present in our sexuality, our eroticism and our affections; in work, home life, the economy and politics. We’re often unaware of how it conditions us, how it has reduced or expanded all human beings’ opportunities and possibilities for development. I needed to make this introduction to put in perspective what I want to say about the Family Code that’s currently being debated for approval in the National Assembly.
So do we really need a Family Code?Nicaragua has never had a Family Code. What we’ve had were a variety of dispersed laws: the child support law, the adoption law, the guardianship law for minors, the law that regulates de facto unions, among others. Now the idea is that all these laws will be fused into the Family Code. Some wonder if a Family Code was really necessary, asking if it wouldn’t have been enough to refine and remove any inconsistencies among existing laws.
Some jurists claim that the protective objective of a Family Code isn’t the matrimonial link per se, but the consequences that derive from that link or de facto union: successors’ rights, for example. And this dimension has nothing to do with regulating gender or the sexual orientation of people who decide to establish themselves as a couple. On the other hand, if the main interest of a Family Code is to protect children, adolescents and people with disability, we might ask why Nicaragua’s Code of Children and Adolescents and the law for people with disability don’t do that job sufficiently.
The code’s recent historyThe effort to unify all laws referring to the family into a single code started in 1994. After that, efforts were made in 2004 and again in 2008. On those occasions, the National Assembly, with support from the United Nations, contracted a team of national specialists to formulate a Family Code bill. The team conducted consultations, collected Family Codes from various other Latin American countries and from Spain to serve as a framework and then drafted the bill. These efforts didn’t prosper, however, partly because the priority of the governments in those years was “modernization” of the State (Chamorro), a pact to modify the political correlation among the parties (Alemán), and international trade agreements (Bolaños); in short, everything that organizes the divvying up of power among the hegemonic groups.
Not until 2010 did the current governing party’s legislative bench dust off and reintroducethe Family Code bill, in line with the Ortega government’s interest in the family. Regrettably, its promoters didn’t include either the positive aspects of some laws related to the family approved during the eighties or of the 2008 version. On the contrary, they modified that original bill in ways that fundamentally reinforced its conservative, interventionist orientation.
Protests against homophobia The revised bill, now being debated in the plenary, has 647 articles. It has already been approved in general, and the article-by-article discussion and approval got underway on April 19, with deliberate speed. It was as fast as the pushing through of the Comprehensive Law against Violence toward Women, which the National Assembly only took up at the insistence of the women’s organizations, and of the 50-50 law promising women “parity” in the electoral slates, which the government invented without touching the Electoral Law, ignoring the Law of Equal Rights and Opportunities and confusing municipal governments.
slow down the legislative debate
The pace of the article-by-article approval of the Family Code was slowed because of public protests by gay, lesbian and trans organizations, which quickly took to the streets to oppose its open violation of their rights. These were the groups that sounded the warning bell for us, while the rest of society, organizations and other social movements remained indifferent to what was happening in the Assembly. Although with a limited vision, the media put the issue of same-sex marriage into the debate, while the women’s organizations protested the failure to recognize both extended and single-parent-headed families, which are actually a majority in our country.
Gays and lesbians publicly argued for the same right to marry or establish de facto unions and to adopt as heterosexuals. An upper or middle class woman doesn’t care all that much that the State doesn’t recognize her lesbian union, but what is a couple made up of two poor women supposed to do? A lesbian friend from a women’s group in the northwest part of the country was telling me that she and her partner have a daughter. They suffered strong family pressure to take the child away because they’re lesbians, on the assumption that they can’t teach a little girl anything good because lesbians have no values…
With this code as written, homophobic families in Nicaragua, which are the vast majority, will finally have legal backing to take that girl away, denying her right to maternity. My friend told me very painfully that “I’m in a panic that now, with this new code, they can take my daughter away.” Many other such things in the code will open the door to injustices, based on the same prejudices that have already caused us so much harm.
The women’s organizations demanded recognition of diverse families, particularly those headed by single women. The immediate consequence of the public demands was that it put the brakes on the detailed discussion of the bill after 101 articles had already been approved. Without knowing what other changes the legislators will make and wanting to believe that perhaps they’ve realized the juridical aberrations the bill contains, we can analyze some of its contents.
Excessive, abusive intervention It’s important to analyze this bill in detail because a Family Code defines the State’s power over our private and most intimate affairs like no other. A code of this nature summarizes the State’s power over the definitions of gender, over what is permitted and prohibited in the sphere of sexuality and over the consequences of our erotic and reproductive arrangements. And that’s no small thing, because we live with them every day. Independent of where and who we are, we all have aspirations, needs and desires to conduct our daily life in relation to other people who are frequently organized as “family.”
in people’s private life
Discussing the contents of this Code amounts to discussing what I want from the State, how much I’m willing to have it intervene in my intimate and private life—and by extension that of others—and to what end. It also means discussing what things I don’t want the State to regulate, what distance I want to put between my intimate life and the State, considering that the international human rights framework recognized in Nicaragua’s Constitution establishes that all individuals have the right to a private life.
The position of many feminists is that the Family Code, as formulated, is involved both excessively and abusively in people’s private life. In that regard, it’s interventionist.
It’s not the State’s role to regulate It states that a woman must marry a man and vice versa. These are the only couples that have the State’s “authorization” to form a family. The right of gays and lesbians to marry is excluded.
and judge couples’ sexual arrangements
By affirming this, the State is determining a single sexual-erotic and affective orientation, a heterosexual one, which is an invasion of people’s intimacy. The State cannot and must not regulate the orientation of the desire or affective links involved in couples arrangements because doing so violates individual freedom. It’s not the State’s role to put heterosexual marriage at the top of the hierarchy and leave gay and lesbian marriage in illegality.
The code also regulates the sentiments of heterosexuals who want to either marry or establish a de facto union. It states that we must do so for love, an allusion to amorous sentiment that’s related to the First Lady’s public discourse. We aren’t against love, but reality tells us that it’s not the only reason people marry. There are people who get married for economic reasons, or to have a place to live or to better their social status, all of which are legitimate reasons, especially if we live in such a poor country as this one, in which people have multiple needs.
Furthermore, how is love supposed to be evaluated? Who’s going to administer the love test? Does the State have the capacity to deny us matrimony if there’s no love?
The code also says we have to be faithful in matrimony. Who gave the State the power to regulate how we make our arrangements as a couple and how we live them out? And what’s it going to do with all the unfaithful marriage partners, both men and women?
A confusion of State and religion The bill further says that married couples must accompany each other in all of life’s circumstances. The syncretic mix of the government’s official discourse smacks of a religious sermon, which links up certain notions of rights with religious dogma. But the Bible isn’t a source of law, and certainly not in a secular State. Transferring religious mandates to the juridical framework is anti-juridical. Accompanying each other in all of life’s circumstances? Why should a person have to accompany his/her alcoholic spouse all the way to total destruction? Why must a woman accompany a violent husband until he kills her, as happens in the case of femicides? It makes no sense. We human beings have the right to protect ourselves from any circumstance that could cause us harm. If we’re of sound mind and heart, the best thing we could do is flee a bad spouse.
By defining the feelings and obligations of life as a couple, the code violates individual freedom and poses unacceptable obligations. It sets the State up as the great Father figure that abusively regulates people’s intimate arrangements. By intervening in this way, the code is a coercive, authoritarian and profoundly conservative instrument. It not only proclaims heterosexism, but also faithfulness and eternal love, an anachronistic and downright corny discourse on couples.
The fallacy of the nuclear familyThe code reinforces the fallacy of the nuclear family, despite the fact that reality shows it has collapsed. We know that at least 35% of Nicaraguan families are headed by a single figure. I’m not using the term parent because that single figure is seldom the father and not even always the mother. Grandmothers, aunts and even women friends care for families often made up of children, grandchildren and even the little cousin or niece or nephew left without a mother because she emigrated. All families, no matter their composition, deserve the State’s respect and protection. It is precisely the bill’s definition of a couple and of a family—heterosexual in the first case and nuclear in the second—that has triggered such controversy.
The original bill considered the family as a group of people who come together and agree to establish links of solidarity. This fits much better with Nicaragua’s reality and that of many countries in Latin America and the world. But those who modified the code decided to present another concept.
The hand of the Catholic Church hierarchyWho was it? Who introduced the motion stating that the family is only nuclear, that matrimony can only be between a man and a woman? It was María Eugenia Sequeira, from the Liberal opposition bench. And who was her adviser in putting forward this and other motions in the code? Bosco Vivas, bishop of León.
I happen to have in my possession the copy of the Family Code that the bishop revised from top to bottom. We need to understand clearly that the Catholic Church hierarchy has various access routes to the parliament, including both the FSLN the PLI benches.
A non-nuclear family is In its conservative logic, the code considers a family sustained by a single woman “dysfunctional.” Such a view gives the code a sexist bias because despite all the evidence to the contrary, it’s based on the notion that women are incapable of heading up a family without having a man at their side. Equally biased is the idea that a single man is incapable of sustaining a family and providing it an affective content. The code smacks of conservativism because it wants to make the unequal relations of power disappear by an act of will, arbitrarily presenting the nuclear family as a model to imitate, as if that alone will or even should make it happen.
viewed as dysfunctional
The profoundly conservative substratum of all these ideas is found in the concept of “complementarity” as used in the government’s official discourse. Complementarity is posed as reciprocal dependence, stating that we women need men in the same way and with the same intensity that men need women, ignoring the existence of gender hierarchies and inequalities. It’s an antiquated and deceitful discourse because it denies the unequal power relations that predominate in a machista society like ours.
Many Nicaraguans actually believe that a non-nuclear family is dysfunctional. A communication student at Managua’s Central American University interviewed me about the code and asked what I thought about dysfunctional families. When I asked her definition of a dysfunctional family, she responded that it’s one in which the mother raises her children alone. If that were true, Nicaraguan society would have long since succumbed; it couldn’t have survived everything it’s been through. We would have huge masses of delinquents, of soulless, insane and dysfunctional people. Yet our society functions. Many boys and girls profoundly respect and admire the women who cared for, provided for and raised them for many years all alone.
How is a family going to be complementary when the man is a sexual aggressor? We know that the sexual abuse committed by a member of the family—which is so frequent in Nicaragua—distorts all relations within that family. It distorts any possibility of a healthy relation between children and adults and between the adults themselves. It distorts authority, affection, sexuality, the limits between one’s own body and that of others, and the notion and practice of power because there’s both love and power in all families, and love is linked to power. A family in which women and children are victims of sexual abuse is a dysfunctional family.
The code’s position on The code denies women freedom and security in the reproductive sphere. No fewer than five articles reiterate the criminalization of therapeutic abortion and any other way of interrupting a pregnancy. Article 273 claims that life begins “from conception,” something our Constitution doesn’t establish. Article 314 presents those conceived but unborn as “minors,” something so unheard-of that it would make one laugh if its implications weren’t so dramatic. Article 262 establishes the responsibility of the mother and father to care for the life from conception. Article 283 establishes the obligation of the mother and father to administer “the potential goods of the one who is to be born.”
the reproductive sphere
It’s totally meaningless. Beyond the debate about when human life begins, these statements violate the most elemental juridical rationality. An embryo in the process of developing can’t be considered a minor from any point of view. And how could parents take care of the goods of one who hasn’t yet been born? As long it isn’t born, they belong to the parent or parents. It requires amazing intellectual distance to be able to commit such nonsense.
These articles, which close any possibility of reinstituting therapeutic abortion, plus the defense of the nuclear family and reference to monogamy and fidelity, are a tribute that the FSLN leadership, and more particularly the First Lady, is paying to the most conservative sectors of society, perhaps in the belief that it’s a way to deflect criticisms against the Ortega government. They form part of the government’s political strategy to maintain some give and take, precarious as it may be, with the most conservative groups of Nicaraguan society.
Why is a self-proclaimed socialist government promoting such a neoliberal family code?In addition to being interventionist, authoritarian and profoundly conservative, the Family Code is also neoliberal, not at all proper for a government that proclaims itself socialist and solidary. Poverty abounds in Nicaragua, although information sources to document it do not. We’re given access to very few official figures that would allow us to evaluate with any transparency the fruit of the government’s efforts to reduce poverty.
We do, however, have some. The World Bank representative in Nicaragua said in a recent El Nuevo Diario interview that poverty had dropped from 47% in 2005 to 45% in 2009 and that extreme poverty had dropped from 17% to 15%. This is a pretty poor showing in four years given the government’s hubbub about all its social programs. If we’re only going to reduce poverty a couple of points every four years, even with all the money supposedly spent on such programs, how long will it take?
As we all know, full employment is a stable way to reduce poverty, but 70% of working age people in Nicaragua work in the informal sector, which is the most precarious and insecure. Only 30% are in the formal sector and are thus covered by social security and other rights and services. Even then only 12% of retired adults receive a pension. In 2011 the government only invested $6 per capita in health care annually, not the $20 needed to adequately cover people’s needs. And it only invested a little more than 4% of the national budget in education, when the international minimum is 7%.
If we compare some of these data with those of the Bolaños government, we perhaps look better, but we’re still very poor and still have huge gaps. Yet the bill leaves the maximum responsibility for satisfying a family’s needs in the hands of its own members, stating that families themselves are responsible for procuring their children’s wellbeing, including health care and education. At no point does it propose how the State will intervene in this sphere—or even if it must—to assure the maximum wellbeing possible for families, particularly the poorest ones. It says nothing about policies to support those who are unemployed and yet must see to their family’s welfare without having the resources to do so.
The code also says that when the family isn’t in a position to respond to its children’s needs, it must seek those who are among relatives up to the fourth level of blood relations. And if it still can find no one, it must keep looking among those among related by marriage. In other words, if a poor girl has no father and her mother can’t raise her due to poverty, she has to go to the child’s older siblings, grandparents, cousins or their parents. And if no help is to be found there, she has to turn to an in-law. Again I must ask, is this a family code formulated by a socialist and solidarity-based State?
What about the elderly and disabled?The bill also states that families must take responsibility for maintaining those over 60 years old. Solidarity has always been a characteristic of the Nicaraguan people; it’s part of who we are. But in conditions of poverty, solidarity becomes an act of extreme sacrifice for many people. What is the State’s responsibility for Nicaragua’s elderly, when only 12% of them receive social security? And if their families are unemployed? What is the State’s responsibility for those who worked so hard eking out a life for their families and for society for so many years? Admittedly the code proposes some responsibility for the State with respect to the elderly by stating it will create centers for them, but it makes it quite clear that the first responsibility is that of their families.
It says the same about families with members who have disabilities. According to the government’s own census there are some 200,000 individuals with disabilities in Nicaragua, yet the bill doesn’t make a single reference to the State’s responsibility to support them or their families. Many women in Nicaragua are anguished about what will become of their children with disabilities when they die, where or with whom they can leave those who can’t take care of themselves. The Family Code offers them no answer.
It not only shows no respect for people with disability, but even associates it with “incapacity,” which isn’t the same thing. This has elicited protests from organizations of people with a disability, reminding legislators that they have rights. The code gives the State a great deal of power to declare a person legally “incapable.” Only people with disabilities themselves know what that means in their particular family circumstances. The State assumes no responsibility even in these cases, establishing that once a person is declared “incapable,” an exhaustive effort must be made to find some family member—in this case from the extended family—to take charge of maintaining the person. It’s yet another demonstration that the Family Code isn’t aimed at establishing what kind of relationship the State will have with the families to procure their members’ wellbeing.
To repeat, the code’s substratum is neoliberal. It undermines State actions to satisfy Nicaraguans’ needs and leaves care in the hands of blood relations, starting, naturally, with the mother
The curious twists and turns of family patrimonySo in what cases, if any, does the State intervene? It intervenes only in cases of total abandonment, which means it only intervenes late, and badly. Protection of the family and respect for the children’s greater interest have no correlate in the code’s regulation of family patrimony. It establishes three economic regimes in couples: separation of goods, shared goods and participation in earnings. Separation of goods means each partner in the marriage keeps what belongs to him or her. Shared goods means the couple shares part or all of the goods each possesses; in this case what they share must be reported legally. Participation in earnings has to do with profit-making businesses the couple has.
The curious thing about this standard is that the creation of family patrimony is left as a strictly voluntary act. If a man with money marries and doesn’t what to share anything as family patrimony, the State can’t act. Where does that approach leave the greater interest of non-emancipated children? The code also puts a limit on family wealth, limiting it to a house valued at no more than $40,000. So what happens if the house that could be put as family patrimony is worth more? I wonder if this disposition isn’t just to avoid the father or mother putting a more expensive property in the under-age children’s name to avoid paying taxes, or protecting a more costly house from a possible embargo, given that family patrimony can’t be embargoed. At the very least, what the code establishes has very little to do with any solidarity with the family it supposedly wants to protect.
The code is positive regarding family patrimony in establishing the State’s obligation to ensure its preservation. This applies both to marriages and to de facto unions, and is important because many men in Nicaragua leave their children in the most absolute poverty when they separate from their partner. Naturally, if the State is to preserve the family patrimony it first must convince the men to report it. But, it would seem the code leaves that task to the women.
Preserving family patrimony means no one can take possession of the house to collect a debt, and it will have preferential treatment with respect to paying taxes. There’s no other allusion to taxes, in the sense of contributing to the family’s welfare. It means that numerous, poor or unemployed families will have to come up with their “own” solutions. It seems 21st Century Socialism didn’t get as far as the Family Code.
Normalizing the rape of minorsAlthough the code invokes children’s greater interest as one of its guiding principles, it promptly violates it by establishing that the national education system must respect the right of pregnant minors. The UN Development Programme’s latest human development report in Nicaragua, dedicated to the issue of youth, states that 27.5% of all pregnancies in Nicaragua in 2009 were among females between 10 and 19 years old. This figure is enough to make one cry because it indicates that rape and maternity as a forced biological fact are becoming normalized in our society and State.
No one in their right mind can think that a girl of 8, 11 or 13 years is able to exercise maternity. Only in such sexist and conservative societies as ours can there be such thinking. Worse yet, the government is building its case on this extreme conservatism by proposing that the rights of pregnant girls must be respected, when the first right must be to end that pregnancy. This code even contradicts the Penal Code and the more recently approved Comprehensive Law against Violence toward Women because both laws establish that any contact or intent to make contact between an adult and a minor for sexual purposes presumes lack of consent and such contact is thus considered a crime. It should be evident to anyone that if a man tricks an 11-year-old girl into having sexual contact with her, it wasn’t consensual, but rape and abuse.
Contradictions between One of the principal examples of wrongheadedness in this bill is the statement that both matrimony between two people over 16 but under 18 years old and the pregnancy of a girl between those ages is a “factor of emancipation.” In other words, if a 16-year-old girl gets married with her parent’s or guardian’s permission, or if she gets pregnant, the State will recognize her as an “emancipated” person. For some truly irrational “reason” legislators consider that the mere fact of getting pregnant turns teenage girls into legally emancipated individuals with full legal faculties.
getting pregnant and adopting
Yet when speaking of adoption, the code goes to the other extreme. It says that only couples have the right to adopt; a single woman without a male partner cannot. Again, the matrimonial link overrides individual rights. In that case, the link as a couple is what produces authority. But even then, adults who want to adopt face a huge number of requisites, including a dragged-out evaluation by the State as to whether they are intellectually, psychologically, socially and economically suitable, whereas a pregnant minor is a priori suitable, with full legal capacity, even when her pregnancy was the product of a rape or she lives in extreme poverty or is gravely ill.
The code states that before declaring a child in total abandonment and thus subject to adoption, the State must verify that absolutely no relative either by blood or by marriage can take charge of it, which means investigating grandparents, aunts and uncles, cousins and in-laws one by one. Only after that process has been exhausted will a suitable couple be chosen for the adoption. Will the State really do this with all the unwanted boys and girls who are in state-run centers waiting to be adopted?
In a country where many children are abandoned to their fate, this bill establishes so many adoption requisites that it could discourage people who would like to adopt. It states that the National Adoption Council will select people deemed appropriate to adopt after multiple inquiries into their psychic, emotional and economic situation. One wonders how many biological mothers and fathers could meet such a harsh test, particularly if they are mere children or young adolescents themselves. In line with the code’s extreme conservative nature, it not surprisingly establishes that only heterosexual couples can adopt, buttressing the supremacy of the traditional concept of a couple over individual rights. Battling the country’s reality, the bill assumes that a man or woman without a partner of the opposite sex, is incapable of exercising the function assigned to parents, unless of course it’s a raped girl, who is given no legal way out of the parental responsibilities thrust on her alone.
De facto unions: A complication or an advance?In addition to civil marriage, the code recognizes de facto unions. But it establishes a difference with respect to previous legislation, which also recognized it, and in my mind this difference doesn’t benefit women. The previous law regulating de facto unions established that heterosexual couples that had lived together “stably” for five years had the same protection from the State as legally registered marriages.
The current bill defines that two years of living together is sufficient, but requires that this union be registered in the civil registry of persons. I personally believe that will be a problem, because men frequently don’t want to get married precisely because they don’t want the consequences of marriage. That being the case, why would they want to register a de facto union? And since we human beings can have many tryouts with our sexuality, what happens if the union is registered and then has to be de-registered?
Given the bureaucracy of state institutions, how many couples, particularly in rural areas, will want to go to the trouble of going to the public registry, above all when the men don’t want to formulize the link in the first place? There will also be couples who don’t want to go through it but do want the State’s protection regarding certain rights. Then there are the men who don’t want to formalize the link because they’re juggling two or three links simultaneously. A man living with two or three different women at the same time is nothing unusual in Nicaragua. Given all these factors, this seems to me a complication rather than progress.
Gender violence is absentThe code virtually ignores recently approved Law 779, the Comprehensive Law against Violence toward Women, which goes into effect this month. Law 779 refers to “gender violence” and in so doing recognizes that the unequal power relations between men and women is both the cause and context of such violence. The code, however, only speaks of “domestic violence,” which is a different concept.
The concept of gender violence recognizes that women and men have unequal power, recognition, decision-making possibilities and resources, and that these inequalities form part of the context that generates and causes violence. Domestic violence, in contrast, alludes to badly managed and poorly resolved conflict in the family dynamics. Feminists around the world have made an ongoing effort to prevent confusion between the two concepts, because they have two different origins, sets of consequences and ways of addressing them.
Another way the Family Code distances itself from Law 779 is that the code doesn’t make a single reference to how the State will act in cases of guardianship and loss of parental links when there’s sexual abuse within the family, even though it’s virtually a pandemic in Nicaragua. While the code establishes different reasons for loss of guardianship, sexual abuse isn’t one of them. Yet what parents should maintain guardianship of their children after having abused them? The lack of anything in the code about it suggests the State’s open complicity with such a grave problem.
By the same token, when regulating adoption, the code has no reference that says, for example, that the State will inhibit a man from adopting a child if he has a prior record of sexual abuse. It says absolutely nothing. Nicaraguan society contains many covert and many discovered abusers and we could be giving a child over to one of them for adoption with the State’s authorization. This is very serious.
Nor does the code say anything about commercial sexual exploitation, an equally huge problem in our country. At least, both it and sexual abuse are crimes already included to some degree in the Penal Code, the Comprehensive Law against Violence and the Children’s Code.
Will the Family Code modify the Children’s Code? The latter is only invoked at the level of principles, but some articles, above all these omissions, undermine its force and legitimacy. Regrettably, the Family Code included the concept that life begins with conception, which is in line with the Children’s Code but in contradiction with the Constitution.
Does the Family Code have One of the bill’s positive aspects is the establishment of clearer regulations for payment of child support. Non-emancipated children’s claim to child support has been and continues to be an ordeal for many women. The bill now at least establishes retroactive payment, which is important because women often spend a year or more trying to get child support. But the percentages established now are absurd: fathers must give over 25% of their salary for each of the first two children, and 30% if there are three or more. In this country, where so many men have an unbridled sexual compulsion as well as an urge for women to “have their baby,” a man who earns 5,000 córdobas a month (around US$213) and has to pay child support for four or five kids is only divvying up crumbs, including to himself.
anything positive and valuable?
In a country with such paternal irresponsibility and such compulsion by men to engender children irresponsibly, another positive element is that women can turn to the State to confirm paternity through a DNA test. And if they can demonstrate their inability to pay for the test, a situation thousands of women are in, the State must assume the cost, which is US$250 at the Central American University. The bill also establishes the verification of maternity as well, which is surprising, as women rarely deny maternity except in those cases in which they abandon their newborns in hospitals or other places—a phenomenon obviously linked to the prohibition of abortion.
The role of the Ministry of the Family andApplication of this code is in the Ministry of the Family’s hands. It will be the lead entity, with the concurrence of other dependencies ascribed to it, such as the currently non-functional Women’s Institute, and other related institutions such as the ministries of health and education and the National Adoption Council.
the Councils of the Family, Health and Life
The Ministry of the Family, created by the Alemán government for strictly ideological reasons, has acquired a lot of power with the Ortega government. I understand that its actions will be directly connected in the community to the new Councils of the Family, Health and Life—which are basically made up of activists of the Councils of Citizens’ Power (CPC). These new councils are already on the move: visiting pregnant girls and women to see if they’ve had their medical check-ups, taking elderly adults for walks, conducting recreational activities for children and in some cases acting as “mediators” in “couple conflicts,” a euphemism for gender violence…
My reading of them and their dedication to promoting the Family Code even before it’s passed is that they are a way to remove the CPC’s “original sin.” During the revolutionary decade, the Sandinista Defense Committees (CDS) began as a community proposal, but rapidly degenerated into organs of citizen control managed by State Security. Something similar happened to the CPCs. People associated them with organs of political control and supervised participation, directed by the governing party structures, and that didn’t encourage involvement. In fact, people truly interested in community problems often didn’t want to get mixed up in party activities such as marches and other forms of mobilization decided on by the FSLN, and hence gave the CPCs a wide berth. The Councils of the Family, Health and Life are a way to give the CPCs an image of genuine commitment to family and community wellbeing.
The government discourse has borrowed the view of the family and community from the indigenous cosmovision, forming a whole that works for everyone’s welfare in a solidary way. It has transferred this idea to the Councils, which are now making the link that brings families together in a given community and promotes solidarity among them.
That’s no problem, in fact it’s a very positive idea, because the privatizing of family life and its fragmentation due to massive emigration, etc., have done us a lot of damage as a society. The problem is the ultraconservative features this proposal is rooted in. That’s the critique we in Nicaragua’s feminist movement have made: that its aim is to cover over gender inequalities and the conflicts generated in families and communities by the inequalities and injustices committed daily against groups with less power. In this respect, gender violence, pregnancy due to rape or the naturalizing of pregnancy in young and adolescent girls are only some of the tremendous problems that need addressing.
So where will the Family Code end up? The Family Code’s promoters have already been forced to reformulate the definition of family to include and to talk about extended and single-parent families, although maintaining the exclusion of families formed by gays and lesbians. Those changes have implications in other articles of the bill. Will they, for example, admit that a single man or woman has the right to adopt a child? The discourse of complementarity seems to be one of the biggest obstacles to that.
However it ends up, we have to give the two alternate MRS legislative representatives, both of them young women, the recognition they deserve. Silvia Nadine Gutiérrez and Edipcia Dubón are the only two interlocutors we’ve had in the National Assembly, the only ones who have supported us by putting our concerns on the table. The fact that they are women and are young makes me proud and hopeful about what we women can do in public power if we’re aware of and committed to equality.
They’ve been the only ones to join us in the critical battle to eliminate the bill’s conservative, interventionist and neoliberal features. They’ve taken our concerns to the debating table in the plenary, and have had to endure a lot of resistance from both the FSLN and PLI benches, both of which are set in their conservative ways.
There are those who say it doesn’t matter how the code ends up, that they don’t need any protection from the State in the family sphere. But we have to understand that this Family Code is above all for poor families. Middle or upper class women often have ways of negotiating child support with their husbands, for example, without needing to turn to the State.
It is poor women who have to deal with their maternity alone, in conditions of poverty and violence. It’s not that middle or upper class women don’t experience violence, but they tend to deal with it differently because they have other resources. The code and other laws are for people who have less power and need the State’s intervention so that justice will be done and their rights preserved. That’s why this law should be important to all of us.
It’s also why it doesn’t make sense to pass a family code that instead of expanding the rights of poor people, which is what they need most, opens the doors to injustice and deepens inequalities. The State’s actions are most justified when they are in defense of society’s most vulnerable, unprotected groups. And it is in defense of those groups that we will continue struggling to modify the contents of this new Family Code.
María Teresa Blandón is a Nicaraguan feminist sociologist and activist.