Cuba’s new Family Code is a window into the political ecosystem
First published at NACLA.
On September 25, 2022, Cuba approved a new Family Code in a referendum, repealing the one in place since 1975. The new legislation moved the country into the 21st century with regard to family law, reproductive rights, domestic violence, children's rights, maternity and paternity, old age, people with disabilities, and more. This Code is the result of decades of struggles, conflicts, and the processing of political, social, economic, and cultural understandings within Cuban society.
The process surrounding the Code sheds light on contemporary Cuban politics. Indeed, the legislation has been the subject of an unprecedented public political dispute. Its particularities, continuities, and the processes by which it was developed, disseminated, and approved, make the Family Code key to understanding Cuba and its (im)possibilities today.
The short period of public debate around the new Family Code began in 2018, when the proposed draft of a new Constitution was discussed in public consultations. Demands to democratize sexual-affective relationships and recognize the plurality of gender identities entered the political discussion through the persistent work of LGBTQI+ activists. Article 68 of the draft constitution included the definition of marriage as the union between two people, freeing this social institution from compulsory heterosexuality. However, contrary to what was expected, the “apple of discord” within the draft constitution was precisely that article, and not any of the many other controversial issues related to distributive justice or political representation mechanisms.
The Council of State reported that Article 68 was mentioned in 66 percent of consultation meetings on the draft constitution and represented 24.57 percent of all recorded citizen opinions. In the process, a majority of people supported reverting the definition of marriage to a union between a man and woman, not between two people. The proposed Article 68 disrupted the moral fabric of Cuban society and placed sexual and gender politics at the center of social conflict.
The process revealed the growing power of religious neoconservatism, much like in the rest of the region. The process also showed the secular conservatism of political institutions, including the National Assembly, which, in contrast to its usual highly standardized unanimity, had unprecedented arguments over this matter.
Faced with this explicit tension, the constitutional commission made a political decision for the new constitution to recognize the right to equality and non-discrimination based on gender identity or sexual orientation, but to not include a definition of marriage. That would be agreed upon later, in lower-ranking legislation: a Family Code, to be approved in a referendum. One possible explanation for this decision is that the political leadership feared that opposition to the provision on same-sex marriage would put the entire new constitution at risk. In legal terms, the new Constitution did not contradict same-sex marriage, but it did not affirm the right to it either.
The Family Code went through 25 versions over the course of three and a half years. The legislation recognizes the possibility of same-sex marriage and establishes the right of all people to adopt—as in Argentina, Brazil, Colombia, Costa Rica, and Uruguay. It includes provisions on gender and intra-family violence and establishes that all matters of discrimination and violence in the family demand urgent intervention. It affirms a wide range of rights and guarantees for people with disabilities and the elderly, including their right to decide where and with whom to live. It details care and protection provisions for minors in the case of divorce, separation, or disasters.
The Code also expressly prohibits discrimination based on identity and sexual orientation. It protects family ties not based on blood relations, such as adoptive and socio-affective relationships, and grants multiparental rights. In this way, the Code recognizes the diversity of existing families, including different forms of legal recognition (marriage or de facto union), and protects stepfathers, stepmothers, and cohabitants in the case of separation without divorce. In addition, it recognizes various economic agreements within marriage, prohibits child marriage (the minimum age is now 18 years), and offers guarantees to people serving as caretakers.
Three of the legislation’s most controversial provisions were the recognition of surrogacy (meticulously regulated and only permitted as a gesture of solidarity); the elimination of Patria Potestad (legal custody) in favor of “parental responsibility” that must guarantee the best interests of the child; and recognition of the autonomy of children, which affirms the right of minors to be heard and protected in all their physical and emotional integrity.
Debates about the Family Code and beyond
The elimination of Patria Potestad was central in debates over the Family Code. Those who defended the Code argued that this changed the conception of children’s upbringing and education from a more vertical relationship that considers minors to be the possessions of their parents to one centered on responsibility. The responsibility model focuses on children’s life and well-being, which centers both the rights and duties of adults in their roles as parents.
However, many individuals and religious or political groups argued on social media that this change would eliminate families’ rights over minors, allowing the state to decide the "best interest" of children and adolescents. This concern was raised in part by people who disagree with the Cuban political system or the government's actions, but not exclusively. Different social groups—including religious groups; opposition figures or groups; and independent, uninformed or fearful citizens—expressed similar concerns, spread fake news, or cited the Patria Potestad clause as the reason they would vote against the Code in the referendum.
Likewise, some characterized the Family Code as an instrument of government indoctrination. However, that charge could be more accurately leveled at the pre-existing 1975 Family Code, which reiterated a dozen times families’ obligation to educate children in "socialist morality." The new Family Code, on the other hand, mentions the word socialism only once, and it does so in a “whereas” clause, not in the articles that outline mandatory actions.
But the concern that the new legislation would expand the potential for state intervention in the control of minors seemed to be related to another pressing issue: migration. Cuba is going through the most serious migration crisis in decades, and many people or families migrate with minors. Therefore, the possibility that the state’s regulations on children could impede them from leaving the country raised concerns for families planning to migrate.
Such concern responds to the fact that the state continually uses extralegal actions to deal with conflict: it “regulates” (prevents) people leaving the country for unknown reasons or as a mechanism of political pressure; it refuses entry to others, even when they have kept their residence or citizenship; it forces opposition figures or dissidents to migrate without due process; among other actions. This situation cultivates mistrust even in concepts as powerful and desirable as that of "parental responsibility" and feeds conspiracy theories about the deprivation of control over minors for political reasons.
The debate around the Family Code also put the issue of parental benefits on the table. In Cuba, the number of women heads of households is growing. In a few years, more than half of households will be headed by women, meaning women will be in charge of minors and any elderly cohabitants. The former Code extended child support at a very low monetary amount despite the high cost of living. The new Code establishes greater possibilities for negotiating child support payments. This, however, does not resolve the deep economic crisis that the country is experiencing, the growing insufficiency of wages, and the loss of salaried income and its impacts on the reproduction of life.
Finally, the government carried out a strong campaign in support of the new Family Code, and for some this produced a link between support for the proposed legislation and support for the government. An important portion of the political opposition rejected the Code because "nothing that comes from the dictatorship can be supported." On the other hand, other dissenters who are not necessarily opposition activists opted for a null vote, abstention, or the “no” option.
Those who did not agree with the Code but do support the government may have voted "yes" to avoid the perception of disaffection, or “no” because their moral or religious values took precedence. Fewer opposition or dissident groups distinguished between their support for the Code and their criticism of the Cuban government or political system and campaigned for the "yes" vote. The LGBTQI+ community, feminists, and rights defenders, including some churches and faith communities, supported the "yes" and campaigned throughout the country. For example, the Church of the Metropolitan Community of Cuba, which has officiated LGBTQI+ marriages since before the referendum, was very active in this regard through community work and on social media.
The new code and social change
A significant portion of those who supported the “yes” vote, mainly the LGBTQI+ community, criticized the mechanism for approving the Family Code through a referendum. For some, the referendum is a legitimate instrument in realpolitik and its use does not have to be questioned. For others, the Family Code regulates fundamental rights, such as non-discrimination, and therefore should not be subject to public scrutiny through a referendum. The official argument for holding the referendum was that the issue of same-sex marriage had raised a lot of controversy.
Some official government voices argued that the Code did not bring anything new—that the law always catches up late and that the Code responded to norms already existing in society. In terms of some of the legislation’s contents, such as the recognition of the diversity of families, this was so. However, in other cases, such as the controversial issues mentioned above, there had been very little prior discussion in Cuba. These issues had not been widely debated in official or unofficial media, nor in public spheres.
In addition, the fact that the Family Code was put to a referendum could seem anachronistic, because it is the only piece of legislation subject to that process among the more than 100 being created or modified as a result of the new constitution. However, the fact is that (neo)conservative religious actors have become strong political actors and exercised a firm hand throughout the process. An evangelical pastor even appeared on state television—an unprecedented and unheard of event in Cuba.
Another issue surrounding the approval mechanism was related to an old problem: the exclusion of most of the Cuban community outside of Cuba. The referendum left out Cubans who have residence in another country (even if they retain Cuban residence) or those who were temporarily outside the national territory. Votes from abroad totaled just 24,443 people—in a country with a diaspora of more than 2 million.
At the same time, the Family Code was published in the Official Gazette as Law 156/2022 two months before the referendum. The last section stated that this law would be enacted once it was ratified in the referendum. That procedure was unusual and arbitrary. A law has never been published as such, rather than as a proposed draft, before it was approved. Regardless of the intention of this move, it raised controversy and warned of possible irregularities in the process.
The Code and the shifting political landscape
In the referendum on the Family Code on September 25, 2022, 74.12 percent of the electorate went to the polls, and the "yes" vote represented 66.85 percent of valid votes.
In contrast, in the 2019 referendum on the new constitution the Magna Carta obtained more support, with 84.4 percent voter turnout and 90.6 percent voting in favor of the draft. Does this mean that by involving content related to sexual morality and the family, the Family Code divided public opinion more? Does it mean that the government has less support than in 2019? That Cuban society is more complex? That more people being abroad can explain the lower attendance at the polls? Or, is it all of these things at once? Probably.
The Family Code placed sexual and gender politics at the center of the social and political fabric, and this was tied up with other debates and cleavages related to political identities, economic crises, migratory strategies, religious communities, and much more. That’s why understanding how this legislation came about is a necessary part of any analysis that attempts to make sense of Cuba today.
Ailynn Torres Santana (Havana, 1983) is a postdoctoral researcher at the International Research Group on Authoritarianism and Counter-Strategies (IRGAC) at the Rosa Luxemburg Foundation, and visiting professor at FLACSO Ecuador. Her academic work and militant commitments are on feminist movements, gender inequalities, care policies and religious neoconservatism in Latin America and Cuba.
Julio César Guanche (Havana, 1974) is a researcher and professor, and Doctor in Social Sciences from FLACSO Ecuador. His intellectual work focuses mainly on analysis of republicanism in Cuba and Latin America, democracy, and studies on racism.