There are rights beyond regulations. Social practices and relationships found and ensure rights; they give them de facto existence. The regulations, however, are essential to guarantee rights, although they are not enough either. Institutions, policies, material conditions, people who ensure the regulated right are necessary. All of that at the same time. If there are no such guarantees, the right is incorporeal, it is not realized. Without being in the regulations, the law could be fragile or more easily violated. That is why the processes of regulatory change, such as the one taking place in Cuba, are so important.
In December 2019, the legislative schedule that sets out the content and times for the creation or reform of 107 laws and decree-laws was announced. This process is laying a part of the foundations that will regulate the country for a surely long time. The controversies that legitimately take place in the situation should not obscure that other issue that, sometimes without making the headlines, is creating the framework of many possibilities, or impossibilities.
Within the legislative change, the new Public Health Law is scheduled to be approved next December. Its contents cannot ignore two things: the presence and intensity of neo-conservatism in the country and feminist programs and the LGTBIQ+ community.
The context of the regulation
In November 2019, a month before the legislative schedule was approved, 40 Cuban citizens asked the National Assembly of People’s Power (ANPP) to include a Comprehensive Law against Gender Violence in the legislative schedule. The request projected in public spheres a significant cleavage in the debate on the issue, but its content was not new. For decades it has been talked about in civil society, academia and various institutions.
As part of that process, there were institutional pronouncements. In a meeting held with part of the signatories, ANPP authorities said that the way to legally face the problem of gender violence was not determined and that the proposal until then was to do so by perfecting the institutional framework of the State and creating the specific niches in the other laws. That is, mainstreaming the anti-violence program in the rest of the normative body.
The alternatives of a specific law or the mainstreaming of the issue in other regulations were presented as exclusive, although in reality they are not. However, and given the exclusion of the Comprehensive Law against Gender Violence from the legislative schedule, the path of mainstreaming has been the one that, de facto, has the most possibilities. For this reason, at the aforementioned meeting the signatories submitted a basic proposal to mainstream in Cuban regulations a comprehensive approach to ensure rights with a gender perspective and against inequalities. That implies gender violence, but it goes further. Among the important regulations mentioned in the proposal was the Public Health Law.
In the same context, the press recorded statements about the institutional work to take the fight against gender violence, and other content in this line, to the legislative changes arising from the new Constitution. It was also learned that the National Center for Sex Education had delivered in September 2019 to the Ministry of Public Health a policy proposal for comprehensive education on sexuality and sexual rights. Shortly before, in January, a “Diagnosis on the incidence of legislation and policies on the access of adolescents and young people to SRH and HIV information and services in Cuba” had been published. The document ensures that between 2015 and 2019, six workshops were held with health and legal professionals to deepen the analysis of the gaps detected and propose solutions.
However, the importance of the Public Health Law to ensure advances in rights is fundamental and recognized by different actors committed to equity.
But there is more. During the constitutional debate, in 2018, the neo-conservatives (religious and secular) were present as powerful political actors. They managed to remove from the Magna Carta the article that would explicitly open the door to same-sex marriage and postponed that possibility to the already forthcoming discussion of the Family Code, which is the only norm that will hold a referendum on a date to be defined in 2021. The presence and deployment of the neo-conservatives did not end there. Today they openly question the termination of pregnancies, sex education and other content related to their sexual morality program.
So, on one side is the need to mainstream all norms with a gender perspective and on the other, the action of religious neo-conservatisms. Of those scheduled, the Public Health Law will be the first to address this tension directly.
Ensuring in that norm contents with gender justice is a democratic necessity and can also be a containment wall for the neoconservative agenda. There will not be a referendum for the Public Health Law. The political negotiations around it are more limited and the capacity for pressure of the neo-conservatives, too.
Needs and proposals for the Public Health Law
The current Public Health Law dates from 1983 and needs to be updated in its language and content, according to the new Constitution, Cuban society, international norms and democratizing social struggles.
At the beginning of 2020, institutional voices reported that this law will recognize that patients are subjects of rights and duties and that the quality of public health should be measured by the accessibility of services, professional care and ethics based on a gender and rights approach, with equal treatment, opportunities and procedures. Although it is not explicit in that law, normative instruments of the Ministry of Public Health do recognize at present the need for a gender perspective. Ministerial resolutions, methodological guides and programs of that instance of government follow this direction.
Also at the beginning of the year, specialists from the National Center for Sex Education called attention to rights and rights frameworks that are being conceived in the drafting of the aforementioned law: the right to receive timely information, with scientific basis, to be able to offer informed consent in situations that require it; right to privacy and to enjoy scientific advances; reproductive right of couples to assess risks before conception and to decide the number of children and the spacing between them; the right to access quality family planning services and free-choice contraceptive methods; sexual and reproductive rights and to information and support, especially in adolescence; right to sexual and reproductive self-determination with a gender perspective, without discrimination based on sex, sexual orientation and gender identity; right to autonomy and integrity of the body and to a life free from all forms of violence, including obstetric violence, and explicit definition of medical procedures in the event of abuse of children or adolescents.
What has been said defines a broad framework that needs to be specified in specific content, which protects rights that are currently questioned by the action of neo-conservatism and/or which are necessary for women and the LGTBIQ+ community. At least 13 issues could be made explicit in the regulation to come.
- It is important to establish the explicit right to voluntary interruption of pregnancies as long as there are no health impediments, in addition to the duty of the State to ensure the conditions for it. At this time, the voluntary interruption of pregnancies is regulated by the Methodological Guidelines of the Ministry of Public Health and is referred to in article 36 of the Regulations of the Public Health Law as a service that must be guaranteed, but the law does not directly recognize the right. However, it exists in social practice, which is a source of law, and relies on the general right to public health and on the integrative and progressive interpretation of the constitutional principle of guaranteeing sexual and reproductive rights. But the Public Health Law needs to make it explicit in order to protect it, offer guarantees, verify the general principle of the Magna Carta and ensure the progressiveness of rights. For the safety of Cuban women and against the advance of neo-conservatism, it is essential.
- Assisted reproduction for single women, for women couples or for diverse families would have to be good news of the Public Health Law. Assisted reproduction is a non-exclusive right of heterosexual couples. The right to sexual and reproductive self-determination, with a gender focus, without discrimination based on sex, sexual orientation and gender identity is an umbrella for this and would prevent exclusive interpretations or restrictions on the matter in lower-level norms.
- A Public Health Law tailored to contemporary Cuban society would have to dedicate a chapter and specific articles to trans people, and the institutional duty to guarantee care in transition processes, for the good of their comprehensive health. The right to health without discrimination and with inclusive sensitivity and ethics is essential for all people. The articles in this sense would go along the same lines as Resolution No. 126/2008, which made explicit the processes related to comprehensive care for trans people and established the National Commission to ensure it.
- The current Public Health Law speaks of health education, but not comprehensive sex education. The regulation, for its part, refers to health education and, in its article 48, mentions that aimed at adolescents and aimed at “preventing the pregnancy of young women by giving guidance on contraceptive measures, genetic counseling, prevention of venereal diseases and other pathologies of the sexual sphere, as well as other aspects of his psychology.” In addition, in Cuba there is a Comprehensive Sex Education Program that has national scope. In this context of law change, it is highly recommended that sex education be explicitly discussed in the next regulation and the assemblages that, in this matter, must exist between health, educational, community institutions and the media be specified.
- In relation to the above, sexual and reproductive rights in adolescence are a fundamental and priority issue in institutional pronouncements. At least since 1998 there have been institutional instances in the country specifically dedicated to the health of this age group. In terms of sexual and reproductive rights, high adolescent pregnancy rates (compared to overall national rates) are a recognized problem, and so are high rates of pregnancy termination. This fact shows gaps and problems in sex education. The new Health Law should, as has been announced, emphasize the rights of this age group and promote guarantees in this regard.
- Maternal and child care is one of the solid pillars of the Cuban public health system. The very low mortality rates for pregnant women and newborns prove it. In the current law there is a specific section in this regard, which must persist, expand and be improved. This would also imply, for example, recognizing in its articles the rights to assisted motherhood of women with different capacities or with high degrees of physical dependence.
- It is essential to promote the co-responsibility of mothers and fathers: to encourage, make visible and not hinder the presence of men in accompanying the pregnancy, childbirth and hospital care. The Public Health Law needs to formulate specific contents in this sense in its articles, which are in the same line of articles 68 and 84 of the Constitution, which include protection of paternity along with maternity.
- Cuba has better rates of contraception coverage than global and regional averages. The current Public Health Law does not mention anything about it—although its regulations do—but the new one would have to. In recent years there have been difficulties in accessing contraceptives due to external reasons, related to the U.S. blockade of the country, and internal, linked to distribution problems. The law to come should establish that right and promote the use and ensure the availability of various contraceptive methods, including the “female condom.”
- Cuba is a highly aged country. Within the older adult population, the largest percent are women. The national report to ECLAC, on the 20th anniversary of the Beijing Conference, declared that there were programs to care for the elderly with a gender perspective. This needs to be strengthened and care for the elderly in this area is an urgency that deserves to be part of the articles of the new Public Health Law.
- Attention to gender violence is already on the agenda. Indeed, it is vital. This type of violence has been internationally recognized as a public health problem due to the consequences it has for the physical and mental health of women. At the same time, it is necessary to include a specific article on obstetric violence, of urgent regulation and specification in the legal body. A part of the gyno-obstetric procedures cause damage to the integral health of women. Changing this implies challenges in the material order, due to the scarcity of resources and the available infrastructure, but other changes can be implemented in the short term (accompaniment during delivery, more careful care protocols, encouragement of co-responsibility, etc.).
- Related to the above is the importance of regulating medical procedures in the event of rape, abuse, physical or psychological violence against women, children, and adolescents. In the current law there is a chapter related to medico-legal action, which does not make further specifications in terms of gender. It is necessary to include content in this regard to avoid, at all costs, re-victimization.
- The training of health personnel is key. Public health laws have sections dedicated to this. In what is to come in Cuba, it is essential to consider two things: a) in the health sector (on the island and throughout the world) there is an over-representation of women and b) the study and training plans must have a perspective of gender and LGTBIQ+ rights. It is necessary to ensure professional training under these principles, which supports from the base the possibility of complying with the contents mentioned up to here.
- Finally, the Health Law and all those on the schedule should be drafted considering inclusive language and observing, to correct them, all the sexist mediations that may exist in their drafting or approaches.
The 13 points collected in this text are an incomplete list. Others could be considered, but those mentioned are among the essential ones, because they would allow these rights to be assembled with others recognized in other laws. At the same time, they would prevent the existence of interpretative margins that restrict rights in lower hierarchical norms or that violate them due to changes in the correlations of force, they would solve coherence problems that exist today within the formulation of the right (contents that are present in the regulation, but not in law, for example). Thus, rights would be protected with their inclusion in the most robust norm (the law) and the commitment to justice, inclusion, diversity, the right to one’s body, and against inequalities and violence would be verified.