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Summary: 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. Further Information