Family - De Jure and De Facto
Twenty years ago, the words de jure and de facto were frequently used. Back then they referred to Latvia’s statehood status, which was undergoing very rapid changes. Today I want to talk about family — about the concept of family, using precisely these categories — de jure and de facto. De facto is the actual situation, the existing state of affairs — as it exists in nature, as an “independent observer” could observe it. De jure — is the description of existing things in legal language, a legal framework corresponding to reality. The framework is created by people — legislators. It always follows reality with a certain lag. In an ideal world, de jure is shaped according to de facto. What I want to show with this article is the enormous differences that currently exist in Latvia between the two. Moreover, the differences are only growing, but they receive no reflection in reality — in documents, programs. I am not sure that politicians, officials, and others involved in these processes realize how enormous this difference is. There is a suspicion that they do not. Even more — reading the state’s main family policy document[1], one becomes convinced that such understanding is absent, which has already been partially noted[2]. The school year has just begun. In many schools, not only children come together, but so-called parent meetings also take place. I write “so-called” because it has long been the case that at these meetings not every child is represented by one or both parents — for one child an aunt comes, for another — an older sister, or some other person. The reason is not only parents who have gone abroad to earn money, leaving the child in the care of a trusted person. Even if the parents have not left the country, the specific family situation can be very diverse. The simplest example — a second marriage. A husband and wife, each with one child from before, both met, married, and have one child together. How many children are in this “family”? One? Three? How would it be more correct to count these three children with four parents? To slightly complicate this same example — one of the two has not yet officially divorced from their marriage, but actually lives with another person. If a child is now born together, then again the question — what is considered a family? Common sense dictates that the adults with children who live together are also a family, but Latvian legislation considers it otherwise. If a wife has not legally divorced from her husband but gives birth to a child from another man, then according to Latvian legislation, the woman’s married husband is considered the child’s legal father (presumption of paternity)[3]. Civil registry employees tell of cases where all three come to register the child, with a unified view of which man is the father and which is not. Unfortunately, the employees are powerless because the law knows better. On the child’s birth certificate, the husband is recorded as the father. A complete de jure victory over de facto. Officials rejoice, people go to court for reality to be recognized as reality. To complicate the situation even further — for example, a man over time has lived in marriage or unregistered cohabitation with several women, and has one or more children with each (for example, President A. Berzins, who has 3 (or 5?) children[4]) — what should be considered a “family” in such situations? Only the last — the current marriage? Yet another situation — Saeima deputy Imants Paradnieks, who lives with two women (wives) and has children with both[5]. What is the family here? Does Imants have one or two families? This is a rare publicly known example, but of course there are vast numbers of similar situations that magazines do not write about. It is possible that, continuing in this vein, we can gradually start talking not about children belonging to one pair of parents, but about “community” children — as it is in some so-called primitive tribes — children are the village/community’s children, and the responsibility for them among the village’s adult residents is shared, upbringing — also shared. One parent feeds, another clothes, a third teaches to read, a fourth teaches to hunt. The concept of family in such communities has disappeared. This may seem exaggerated in this article, but to be honest, in some Latvian villages the situation is not particularly different. Going even further, we can talk about the complex family situations that arise thanks to the development of medical technology. Various reproductive solutions, for example, artificial insemination, surrogate mothers. Cases where one woman carries another woman’s fertilized egg. Cases where one woman carries a child for another woman who for some reason cannot have children of her own. Some of the questions about what is and is not a family are resolved by medical ethics specialists, yet legislation also significantly lags behind here. Looking at still other examples from life, we must also talk about homosexual couples. For two women living together, there are technically no barriers to becoming pregnant (one or both), carrying, giving birth to, and raising a child together, and this does happen. Legally, it is possible to register one as the mother, while the other will be absolutely nothing to the child. Of course, for two men, realizing this possibility is considerably more complicated, but it is also not impossible. I am speaking about reality, not laws. Adding the dry Latvian statistical facts, which show that for many years already half of all marriages are dissolved[6] and at the same time nearly half of children in Latvia are born outside legally contracted marriages[7], it is perfectly clear that existing laws apply to a minority. In other words — the so-called “normal” families are already in the minority. Welcome, de facto!
What to Do?
Family formation is based on emotional, historical, religious, traditional, economic considerations. Placing all of them into a legal/legislative system is probably impossible in essence. However, in my opinion, completely new solutions must be sought that would describe and reflect reality — that diverse reality that exists right next door and of which we often have no idea. Solutions that would protect children cared for by responsible adults, that would not restrict but support the relationships between children and adults, that would allow people to call a family what they themselves consider a family, rather than what lawyers dictate. The new solution must be based on two fundamental principles: 1. Children have the right to know their biological parents. (Because hiding this information causes greater harm and allows greater risks than the perceived benefit[8]). 2. A child needs adults who care for them and take responsibility for them. The most important criteria for these adults are responsibility, empathy, the ability to care, and to be happy. The number of adults, their gender, and their mutual legal/kinship relationships are completely irrelevant to the child. Emotional care is more important than material care. Legislation must solidify the child’s relationships with these adults. I understand that the task is not easy, and it will probably take several years before something changes for the better. Perhaps it is no coincidence that the Family State Policy Guidelines are planned until 2017. In that time, starting early enough, it is possible to create new documents that would be much closer to the reality in which we live.
[1] Family State Policy Guidelines 2011-2017: http://polsis.mk.gov.lv/view.do?id=3583
[2] Linda Austere, “The Correct Basic Unit of Society” http://www.politika.lv/temas/politikas_kvalitate/pareiza_sabiedribas_pamatsunina/
[3] Newborn registration http://www.tm.gov.lv/lv/noderigi/berna_registracija.html
[4] http://www.pietiek.com/raksti/prezidenta_berzina_bernus_skaitis_vid
[5] http://www.pietiek.com/raksti/ko_paradnieks_sastastija,_apsolija_un_paludza_viltus_slucim_pilna_sarakste and http://paradnieks.lv/2011/05/06/una-altruistiskais-egoists/
[6] http://twitter.com/Ansis_Stabingis/status/111825662377078784
[7] http://twitter.com/Ansis_Stabingis/status/111825910474358784
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