One of the many protests held in 2014 by sexual diversity activists and organisations demanding recognition of the right of lesbians, gays, bisexuals and trans persons to marry and adopt, which was not included in the new Family Code. Credit: Courtesy of the Sustainable Development Network of Nicaragua

By José Adán Silva
MANAGUA, Apr 29 2015 (IPS)

A new Family Code that went into effect in Nicaragua this month represents an overall improvement in terms of the rights of Nicaraguans. However, it has one major gap: it fails to recognise same-sex marriage, and as a result it closes the doors to adoption by gay couples.

Organisations that defend the rights of lesbians, gays, bisexuals, trans and intersex persons (LGBTI) fought to the end without success to get the new Code – Law 870 – to include the right of gay couples to marry and adopt children.

Marvin Mayorga, an activist with the Urgent Actions Against Discrimination for Sexual Orientation and Gender Identity Project in Nicaragua, told IPS that the law is discriminatory.

“The lack of recognition of gay marriage forces us to formally remain single, and single people are not legally allowed to adopt children in this country and establish a family,” he said.“The lack of recognition of gay marriage forces us to formally remain single, and single people are not legally allowed to adopt children in this country and establish a family.” -- Marvin Mayorga

“And outside the family there are more barriers to achieving minimal guarantees and benefits like decent work, social security coverage, education, healthcare and housing,” he complained.

The activist stressed that “families in Nicaragua are diverse, but they want to impose one single model of what a family is.”

The new Code, approved by the legislature in 2014, finally entered into force on Apr. 8.

Its aim is to protect the rights of each member of the family as well as enforce the collective rights and obligations of families.

The driving force behind the drafting of the new Code, lawmaker Carlos Emilio López of the governing left-wing Sandinista National Liberation Front (FSLN), told IPS that the 674-article Code updates and brings together in one legal instrument what was previously dispersed in 47 different laws and regulations.

The new Code addresses questions such as marriage, property rights, adoption, retirement, the rights of mothers, fathers and children, divorce, alimony and paternal and maternal responsibility.

Up to now, family questions were mainly included in the 1904 Civil Code, which according to López regulated these issues with a strongly conservative and Catholic tint, which subordinated women and children to the father as the breadwinner of the family.

“A careful analysis was made so that each member of society, as individuals that form part of families, had clear rights, obligations and duties in keeping with the country’s constitution and laws, so that there would be no discrimination against anyone for any reason,” he said.

López argued that there is no discrimination against the LGBTI community because the Nicaraguan constitution, which is above the new Code, protects the right of all Nicaraguans, and provides guarantees against inequality.

But Luis Torres, head of the local NGO Nicaraguan Sexual Diversity Alternative, told IPS that the new Code does discriminate against LGBTI persons by excluding them from the right to marry and forcing the state to provide social benefits only to family units recognised as such by the new Code.

“It’s a step backwards,” he complained. “Through the Code, the state excludes cohabiting same-sex couples from social security coverage. Neither marriage nor civil union between people of the same sex are recognised.”

That means in practice that “LGBTI couples do not have access to related rights like the right to a family loan, to adopt children, or to obtain social security coverage in case of the death or injury of a spouse, among other rights enjoyed by heterosexual couples,” Torres said.

The advances made by the new Code include recognition for the first time in this Central American country that civil unions – but only between a man and a woman – have the same rights and obligations as traditional married couples.

Ramón Rodríguez, a professor of criminal law and human rights law at the Central American University and the American University, said that because the Code “establishes that marriage and stable civil unions are only between a man and a women, a significant segment of the population, which forms part of the sexual diversity spectrum, is the direct victim of the violation of the universal principals of equality and non-discrimination.”

But Samira Montiel, Nicaragua’s ombudswoman for sexual diversity, disagreed with the criticism by human rights activists and LGBTI rights organisations.

“I would also have liked the Code to allow me to marry and adopt, but the constitution does not permit that and the Code cannot be above the constitution,” she told IPS.

Montiel said that although “for now” same-sex marriage has not been recognised, “the individual rights of each member of the lesbian-gay community are protected because they have equal rights as siblings, children, parents, relatives and citizens.”

“No lesbian woman or gay man who has a child will lose their right to parenthood, and they won’t be denied any benefits. So far I haven’t received a single formal complaint about the Code, no one has appealed it, there isn’t a single request for adoption of a child by a gay couple, and healthcare has not been denied to any lesbian or bisexual,” she told IPS.

One of the positive aspects of the Code is the fact that it accelerates the legal process for suing for alimony in divorce cases. Instead of dragging on for up to five years, the process can now take no longer than 150 days.

It also sets child support for sons and daughters under 18 to up to half of the income of the parent who is being sued, and creates fines for incompliance.

In addition, it creates a process for elderly parents to sue their children for abandonment, and gives sons and daughters up to the age of 24 the right to receive from their families money to buy food, in the case of proven need.

Furthermore, it addresses matters related to divorce, the division of assets, child protection, parental leave and other areas.

It also prohibits physical punishment or other humiliating treatment of children in any setting, and sets the age of marriage at 18 – the age of majority for both sexes, in terms of legal obligations.

The Nicaraguan federation of non-governmental organisations that work on behalf of children and adolescents had demanded that the age of marriage be raised, in order to put an end to marriages between girls aged 14 or even younger to adult men.

These marriages are often the so-called “family remedy” in cases of sexual abuse or pregnancy of girls and adolescents by adult men.

Edited by Estrella Gutiérrez/Translated by Stephanie Wildes

A wide-ranging reform of Argentina’s civil code is looking to replace traditional concepts of parental authority and control with one of parental responsibility, while expressly prohibiting corporal punishment for children and adolescents.

“The changes are pursuing a more democratic family, that in turn will promote a more democratic state,” lawyer Nelly Minyersky, a professor in the department of family law in the University of Buenos Aires and other academic institutions, told IPS.

Minyersky is one of the experts who worked on the bill for a new civil and commercial code, requested by centre-left President Cristina Fernández to replace the current code which date from the 19th century.

The proposed changes, prepared by over 100 experts, are now being analysed by Congress, which will convene public hearings in every province in the country in order to foster broad debate. Both chambers of Congress are expected to vote on the measures in March 2013.

The text of the bill incorporates into the civil code international treaties on human rights, including women’s, children’s, indigenous people’s and consumers’ rights, as well as protection of environmental resources.

The reformed civil code incorporates same-sex marriage (already established by law) and no-fault divorce, removes fidelity within marriage as a legal duty, and regulates surrogate motherhood.

It also does away with the idea of parental authority and control over children, which regards children as chattels of their parents, and replaces it with that of parental responsibility, and it replaces the concept of “correction” with those of guidance and orientation of one’s children.

“The structure of parental rights and duties is undergoing a fundamental change because children and adolescents are seen as persons with rights, and there is more respect for their views and their participation in decision-making,” said Minyersky.

The reformed code also takes into account the concept of adolescence, and provides for over-13s to have a say in decisions taken by parents or guardians about their health and education, as well as giving them the right to legal counsel if appropriate.

“This is part of what was recommended by the Convention on the Rights of the Child which entered into force in 1990 and was ratified by Argentina. The idea is not to diminish the value of parents’ opinions but to highlight that their authority arises from respect and a better relationship with the children,” Minyersky said.

The article in the current code establishing that parents have “the power of correction” will be replaced by one “prohibiting mistreatment and any act that physically or psychologically injures or harms children and adolescents.”

The bill also proposes offering parents support in the form of counselling services provided by state agencies, when needed.

In an interview with IPS, Gimol Pinto, a lawyer and expert on the protection of children’s rights at the United Nations Children’s Fund (UNICEF), said the reform is “absolutely essential and very welcome,” apart from the fact that legal precedents have already begun to incorporate many of these new concepts and rights.

“The present civil code refers to parental authority with wording that is open to misinterpresentation, as if any kind of corporal punishment were permitted. The new text, in contrast, describes the role of parents at length,” she said.

“Parents have rights, such as choosing their children’s names, the school they attend, or the religion they wish to bring them up in, but all of this must be in the context of the duty to contribute to children’s development as right holders and responsible persons,” she said.

Pinto said new challenges would arise once the new code was approved. “Education, awareness-building and empowerment for families are necessary, because raising children poses challenges, such as setting and applying firm limits without violence,” she said.

A report published this year by the U.N. secretary-general’s special representative on violence against children, Portuguese lawyer Marta Santos Pais, called for the urgent adoption of laws to protect children from violence.

The office of the representative said that between 500 million and 1.5 billion children worldwide suffer some kind of violence, and the main perpetrators are generally those entrusted with their care: family members, teachers or other persons involved in raising them.

The Global Progress Survey carried out in 113 countries for the report concludes that over 20 percent of countries already have some legislation on the issue, although it also indicates there are “significant gaps” between the letter of the law and its enforcement.

At the South American Meeting on the follow-up to the U.N. Study on Violence against children and adolescents held last year in Paraguay, it was reported that Costa Rica, Uruguay and Venezuela are the most advanced countries in the region in terms of legislating against corporal punishment of children.

A similar bill being debated by the Peruvian Congress prohibits methods of correction that harm the physical and psychological integrity of children.

Meanwhile in Brazil, a bill popularly known as the “anti-spanking law” was approved last December by the lower house of Congress but has not yet been debated in the Senate.

“Groups of conservative legislators presented six petitions opposing the bill,” Marcia Oliveira, an activist with the Rede Não Bata, Eduque (Educate, Do Not Punish! Network), a coalition of organisations advocating a ban on physical punishment of children, told IPS.

“Brazilian civil society has put strong pressure on members of Congress who work for the rights of children and adolescents, and we managed to overturn the petitions against the bill. Now we’re waiting for the result of the vote in the Senate,” she said.