Caregiving from a rights-based perspective: from individual to universal.Everyday, we hear more and more about the difficulties that women face as they try to coordinate their productive work with their family responsibilities. Just how can women get to work, looking like calm, cool and collected professionals, after having to organize logistics and responsibilities of care that are quite similar to those of the companies that employ them, with the noticeable difference that these companies have an entire department with specific personnel and a considerable budget? Of course, if women could get all their domestic work done in the few hours before going to their paid jobs, then maybe it wouldn't be such a serious matter, the problem is that it takes all day long, every day, and both the specific demands of remunerated work and the invisible--and not so invisible--demands of the private sphere only continue to increase.
But why is this a recurrent issue in the lives of Latin American women? What has changed from one generation to a next? How can women today, who are more highly educated, who are more active in the public sphere and who enjoy more and better opportunities, be so much more overworked than their own mothers? Is the problem in women's heads or is it a new social issue?
Because we are looking at the context of Latin America, we must first recognize the general scenario that is marked by serious inequalities. In recent decades, there has been noteworthy recognition of formal equality between women and men, especially in terms of equal opportunities in employment and in many aspects of public life, but inequality in the domestic realm has continued.
Women are still trapped by the time they put in to their workday on the job and their reproductive workday in the home, as well as by a series of inequalities disguised as equalities that have trapped us in promises of change. One way or another, this millennium began with the promise of tremendous objectives and goals, but nonetheless, our daily social relations are affected by other special interests, that may be much less attention-getting but still have considerable impact. The new social issue, at least for women, exists at this level.
At the same time, while women manage to overcome situations of discrimination and inequality in the public sphere thanks to equal opportunity plans, international instruments promoting equality and affirmative action, little progress has been made in regards to the sexual division of labor or to encourage men to actively share in the responsibilities of caregiving--not just of their children but of their parents, as well--neither have new laws been proposed to regulate caregiving that goes beyond the labor laws regulating women workers. Strategies for paid workers (both women and men) are not discussed--although in general there is some sort of regulation that protects them (1)--and neither are the concerns of informal workers or domestic workers (who are overwhelmingly women) addressed and much less the situations of those who need care. They care for others and themselves as best they can and are cared for how and when they can be.
The situations described above are aspects of an issue that is infrequently addressed but that needs to be included as a topic of debate: how do we incorporate the complex issue of care in a framework of rights, in other words, not just in "relation to" one's status as a paid worker or as a "beneficiary" or "receiver" of a policy on caregiving, but as an inherent principle of equal opportunity and equal treatment and also as a way of guaranteeing equality in career trajectories for women and men and even in quality of life. Care must also be analyzed as an obligation and the multiple implications and consequences of this analysis, such as whether this is a public or private responsibility, must be considered.
This is a first step towards leveling the imbalances in caregiving responsibilities and also towards resolving the problem of the sexual division of labor. It means starting the debate to get the issue on the public agenda of decision making and consolidating it as a comprehensive right rather than achieving recognition of the right to care as an individual right (and therefore attributable to women). Only by including care as a universal right--as a right in and of itself (for those who must be cared for and those who must or who want to care for them)--will we win an important triumph, both in the recognition of caregiving efforts that have been ignored until today, as well as in terms of quality of life for the citizenry as a whole.
This article will analyze the discussion around this issue and the proposals to confront--and overcome--the common notion that the matter of care will only be settled with the creation of a support network able to provide all homes--or all contracted workers--with the caregiving infrastructure that they require, which nonetheless is undoubtedly necessary and lacking today. On the contrary, this article emphasizes the need to invent new strategies for development that include a right-based approach as a theoretical and operational framework that facilitates a more precise definition of the obligations of States in relation to the principal human rights involved in a strategy of development.
1. About Caregiving, Caregivers and Care: An Endless Cycle
The issue of care and of those who provide it (for themselves or others) becomes a matter of the exercise of rights when these rights are agreed upon, or on the contrary, in an effort to decrease inequalities as a matter of public policy. In either case, we arrive at a debate in which rights, inequalities and politics intersect, in keeping with the classic feminist demands and theoretical developments, with the specific difference that if, in the current situation, the exercise of these rights are not broadened, then the principle of equality, which is fundamental for human development, will continue be affected. In other words, women will continue to be overburdened with all the obligations and responsibilities of care.
The principle of equal opportunities, contained in many constitutions in our region, has been interpreted in most cases to relate to the realm of employment, more specifically to the promotion of equal pay for equal work and equal treatment under the same conditions, among other aspects, but always ignoring the relationship that this principle has with the private world. In other words, equal opportunity has also come under the historical division of public/ private, in which better conditions are promoted in the public sphere, ignoring the private sphere of reproduction that allows the participation of people in the public realm.
Therefore, this article defends the proposal to address the promotion of comprehensive rights to care and not the recognition of the right to care as an individual right, which could be made the responsibility of women. While the language of rights has an inherent ethical and political value and can serve to strengthen social demands in the face of inequitable situations, the concrete implications of this language in social relationships are not always adequately considered. We risk using a rhetoric of rights that does not meet the basic expectations that could be legitimately expected of this concept. However, the seriousness of the situation--one that affects the entire region and which is being resolved almost unilaterally by women--implies taking this risk, which indeed seems to be the lesser of many evils. At the very least, it would get the issue of care on the table.
While there are many definitions and designations involved in the concept of "rights bearer," broadly this notion is a legally justified pretense that enables an individual to do something or to not do something and, at the same time, to be able to demand that a third party do something or not do something. In other words, there is a legal norm that gives a person a positive expectation--of action--and a negative expectation--of omission--simultaneously creating corresponding obligations and duties in other rights bearers. Another characteristic of a right is the possibility of making a complaint to an independent legal authority--usually a judge--to enforce fulfillment of the obligation or to impose reparations or sanctions for the failure to respect the right in question (justiciability or the ability to exercise legal authority). (2)
As a result, granting rights also implies recognizing a sphere of influence for the rights bearers, a recognition that limits the margin of action of those who are obligated to fulfill these rights, including the State, as it very broadly defines the actions that they can or cannot take. Strictly speaking, a rights-based perspective explicitly recognizes the direct relationships among the right, the empowerment of the rights bearers, the corresponding obligation and the guarantee, all of which come together to increase the possibility for reestablishing balance in the context of widely different social situations.
And in this regard, we must stress the importance of considering care as an obligation that stems from the right to care. The right to care, to be cared for and to take care of oneself are all tied to care as an obligation. In other words, this implies a series of negative obligations, which are typical of economic, social and cultural rights (such as the obligation to not create obstacles to childcare services or to not prevent access to healthcare for senior citizens), but above all, it includes positive obligations that entail the provision of the means to be able to provide care, guarantees that care be provided in conditions of equality and the provision of a high-quality healthcare system and sufficient health coverage.
In any case, it is clear that some individuals are obligated to provide care: parents must care for their children or grown children for their aging parents, in a situation of relative autonomy. However, the State or others in certain instances also must take action in terms of the provision of care. In other words, the State's responsibility doesn't just entail not preventing a woman from breastfeeding her child, the State must actually facilitate the necessary conditions for her to do so. If she works outside the home, the State must guarantee her leave or a physical space to breastfeed, regardless of whether she is a civil servant or a worker in the private sector. The State must also give fathers leave to share in the responsibilities of caregiving and childrearing. In other words, we must not just promote guarantees for women workers that allow them to carry out caregiving tasks, we must also get a commitment from the other individuals who are involved, the fathers. (3)
2. Caregiving from a Rights-based Perspective
The "rights-based perspective in policies and strategies for development" understands the conceptual framework of human rights as internationally legitimated rights to be a coherent system of applicable principles and guidelines for development policies. (4)
This focus sets development strategy in an explicit conceptual framework, from which we may derive valuable elements for addressing the different components of this strategy: equality and freedom from discrimination; participation and empowerment of excluded sectors; and mechanisms for horizontal and vertical responsibility, among others. This conceptual framework, which is also theoretical and operational, allows a more precise definition of the obligations of the State to the principle human rights implied in a development strategy, since it involves economic, social and cultural rights (ESCR) as civil and political rights.
Among other contributions that this rights-based perspective brings to the table is the emphasis placed on the material--and not just formal--equality of women and men, with a view to closing the gaps and "building bridges" among the system of human rights, social policies and development strategies that at the same time link with the political system (i.e., government coalitions) to redirect economic policy, in the same fashion as development strategy under a rights-based perspective. (5)
It is especially relevant that the rights-based perspective does not restrict the public policy options that the State may adopt for fulfilling its obligations. This perspective recognizes a significant margin of autonomy for the States with regard to the specific measures that they can adopt for guaranteeing rights. This autonomy is central for ensuring the compatibility of a rights-based perspective with the national processes of defining development strategies and must be kept in mind, especially when attempting to employ legal standards in monitoring and evaluating these policies.
3. From Individual to Universal
Is it possible from a rights-based perspective to imagine sustainable strategies that invert the dominant dynamic from recent decades? What is the relationship between care and development policy? How does care fit into the context of the region's social policies? Can we consider granting and defining rights in post-structural-adjustment Latin America?
If we recall the principle of interdependence enshrined in the 1993 Vienna Declaration and Programme of Action, the right to care--addressing both the receiver of the care and the caregiver--could be considered as part of the universal human rights guaranteed in a range of international instruments, regardless of the fact that it is not explicitly named as such.
If the governments of the region would recognize care as a universal right that is essential and not subject to concessions for special groups, it would imply an important step forward for guaranteeing material equality among women, men, different age groups and the disabled. However, it is possible that recognition as a universal right is not enough to guarantee that the right to care is exercised in light of specific situations or conditions, such as in the case of children or senior citizens.
In this regard, in General Comment No. 6, "The Economic, Social and Cultural Rights of Older Person," the Committee on the International Covenant on Economic, Social and Cultural Rights derives this vulnerable group's right to care of from other rights, stating: "The International Covenant on Economic, Social and Cultural Rights does not contain any explicit reference to the rights of older persons, although article 9 dealing with 'the right of everyone to social security, including social insurance', implicitly recognizes the right to old-age benefits. Nevertheless, in view of the fact that the Covenant's provisions apply fully to all members of society, it is clear that older persons are entitled to enjoy the full range of rights recognized in the Covenant. This approach is also fully reflected in the Vienna International Plan of Action on Ageing. Moreover, in so far as respect for the rights of older persons requires special measures to be taken, States parties are required by the Covenant to do so to the maximum of their available resources."
This right was later explicitly incorporated in Article 17 of the Protocol of San Salvador, which declares that "Everyone has the right to special protection in old age. With this in view the States Parties agree to take progressively the necessary steps to make this right a reality ..."
In a similar fashion, the Convention on the Rights of the Child (CRC), in Article18, para. 1, states that "States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. [...] The best interests of the child will be their basic concern." Para. 3 stresses the connection between the working conditions of the parents with caregiving infrastructure: "States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from childcare services and facilities for which they are eligible."
But there is no room for naivety in this regard. In Latin America, the notion that this is "another right of a programmatic nature" has been trotted out so often that it has contributed to further divide the citizenry. For this reason, it is important to clarify that human rights are conceived of as universal but must be guaranteed by the States. The concept of equality is constitutive of the concept of human rights, in so far that belonging to the human race endows one with these rights, and therefore, the principle of freedom from discrimination is inherent to this category of rights.
The Vienna Declaration explicitly refers to the State's responsibility in the promotion of true equality, both at the level of public policy design, as well as in the promotion of cultural change for achieving equality among women and men at all levels. It is precisely in regard to the principle of equality and freedom from discrimination that, in keeping with the CEDAW, each signatory State is responsible for ensuring the enjoyment of rights in conditions of equality and free from any form of discrimination and, in this effort, should take any steps necessary, including the prohibition of gender-based discrimination, to end the discriminatory acts that hinder the full enjoyment of these rights both in the public and the private sphere.
I propose that the right to be cared for and to care for (including oneself) should be considered a universal right that cannot and should not be treated as anything other than universal. It cannot be understood as an individual right, as this would be in direct contradiction with the International System of Human Rights, which includes the right to care in all aspects, although without naming it specifically.
In other words, according to the position that this article defends, it would not be a necessity, a priori, to promote an explicit recognition but rather to take this framework of rights under the International System of Human Rights and promote the monitoring and enforcement of the right to care in each of the States. The monitoring mechanisms of each of the international agreements, such as the ICESCR, the CRC or the CEDAW, provide ways to follow up on the progressive measures that States are adopting to guarantee the right to care, measures that must be implemented in a framework of guarantees of equality and freedom from discrimination.
In keeping with the regular timelines that the adoption of human rights usually follow, first there is recognition of the right, and then, mechanisms of control are established, basically in the form of protocols and the organizational structure tied to each covenant (i.e., Committees, Commissions or the Inter-American Court of Human Rights). When consensus is achieved on the recognition of the right to care as a universal right, there must then be follow up and monitoring of the fulfillment of this right. For example, an initial entity could be established under each country's agency for the advancement of women, Ministry of Social Development, agency for senior citizens, department of human rights or in parliamentary commissions, so that promoting this right transcends formal recognition and its achievement takes the form of material equality. At the same time, civil society organizations can promote and contribute to this process, not just women's organizations but civil society as a whole.
However, the emphasis should be placed on the recognition of care and caregiving as a right for all and not just for women. The desire to draw attention to the caregiving work that women perform, as will as the responsibilities that this implies, should not reaffirm their responsibility in legal terms. We are not fighting for the recognition of the right to provide care, but for the recognition of the universal and inalienable right to care, to be cared for and to care for oneself. This recognition is the first step in distributing the responsibilities of caregiving among all members of society and not just among women.
Understanding the right to care as a universal right also involves the complicated issue of senior citizens as the beneficiaries of care, since in general they are not recognized in labor laws as such. Only minor children are defined as falling within the sphere of responsibility of women workers; aging and dependent family members are rarely included.
A rights-based perspective demands profound reform in the context of public policies--particularly social and economic policies--that are currently in force today. In the first place, the process of considering care as a universal right is a transversal process that, like all transversal policies, must start with a revision of the disjointed and discriminatory policies applied in the region in recent years, evaluating whether these policies are compatible with the framework of rights proposed in this approach and simultaneously promoting an effective inclusion of care as a universal and not an individual right.
If we look at this issue in terms of the offer of care by the State and the private sector, the limitations are clear, as illustrated by several empirical studies. (6) The first limitation is inherited from the local institutional arrangements in which such rights are associated with the situation of formal women workers. Motherhood is required for access to childcare, but informal workers and domestic workers (whether paid or unpaid), are left out of the equation. In other words, the rights to time and services for care are directly related to standing labor laws.
It goes without saying that these measures must include the legal principle of equal treatment and all that this implies for regulating women's work, with an emphasis on the concepts of discrimination and inequality, to test measures and policies for advancement that employ mechanisms of redistribution and mutual recognition between the systems that guarantee economic, social and cultural rights--which are universal and based on solidarity--and the productive systems that promote and safeguard access to productive work, with formal guarantees and access to social security that is free from discrimination.
The mere recognition of the right to care does not guarantee that quality care is provided in conditions of equality and in sufficient quantities. Therefore, one single solution is not enough to resolve the situations of discrimination and exclusion from care faced by vast sectors of the population. All the actions implied in caregiving must be fully complemented and transversalized.
In this effort, priority must be placed on changing the logic of the policies and on strengthening the mechanisms of control and monitoring, in order to encourage the States to fulfill the obligations that they have voluntarily assumed. At the same time, it is also necessary to ensure basic economic, social and cultural rights and verify the limits that have been established for their fulfillment, especially the way in which States should guarantee that all people can access a basic standard of protection and care in conditions of equality. By matching the basic social right with progressive measures in terms of provision of care, considerable headway can be made towards guaranteeing agencies that promote wellbeing.
While it is important to use strategies like affirmative action in an initial stage, a right-based perspective implies a strategy of structural change that includes the reorganization of the sexual division of labor in all areas as a immediate and necessary step towards universalizing the right to care. This will be a first step towards truly questioning the structural basis of inequality: the hierarchical and divided spheres of public and private life.
Nonetheless, a rights-based perspective applied to public policy does not imply adding more programs or more ministerial agencies to provide care. Rather it seeks to promote an understanding of the comprehensive nature of care and its value in terms of guaranteeing social reproduction. Recognizing care and caregiving as a right sets it in the context of commitments already signed by our governments and within a system that protects human rights. At the same time, the implementation of such a right should take place under established standards and with appropriate monitoring bodies.
This new social issue demands urgent actions and effective measures to overcome the trap of inequality that ensnares women, striving for equity by promoting autonomy and equality that recognizes differences. A rights-based perspective can make a considerable contribution, if there is sufficient political will and social consensus.
(1.) For an analysis of labor regulations in Latin America from a gender perspective, see Laura Pautassi, Eleonor Faur and Natalia Gherardi, Legislacion laboral en seis paises latinoamericanos. Avances y omisiones para una mayor equidad, Serie Mujer y Desarrollo no. 56 (Santiago, Chile: ECLAC, 2004).
(2.) See Victor Abramovich, "Una aproximacion al enfoque de derechos en las estrategias y politicas de desarrollo," Revista de la CEPAL 88 (Abril 2006).
(3.) The CEDAW and the Convention on the Rights of the Child make both parents responsible for childcare.
(4.) Victor Abramovich and Laura Pautassi, "Dilemas actuales en la resolucion de la pobreza. El aporte del enfoque de derechos," paper presented at the Seminario "Los Derechos Humanos y las politicas publicas para enfrentar la pobreza y la desigualdad," organized by UNESCO, the Secretaria de Derechos Humanos and the Universidad Nacional Tres de Febrero, in Buenos Aires, December 12-13, 2006.
(6.) These include Marco Flavia, El cuidado de la ninez en Bolivia y Ecuador: derecho de algunos, obligacion de todos, Serie Mujer y Desarrollo no. 89 (Santiago, Chile: ECLAC, 2007) and Corina Rodriguez Enriquez, La organizacion del cuidado de ninos y ninas en Argentina y Uruguay, Serie Mujer y Desarrollo no. 90 (Santiago, Chile: ECLAC, 2007).
The author is a researcher with the Consejo Nacional de Investigaciones Cientificas y Tecnicas (CONICET, National Council for Scientific and Technical Research) and the Instituto de Investigaciones Juridicas y Sociales "Ambrosio Gioja" ("Ambriosio Gioja" Legal and Social Research Institute) in the Law School of the Universidad de Buenos Aires, Argentina. She is also a member of the Equipo Latinoamericano de Justicia y Genero (ELA, Latin American Team on Justice and Gender). The following article is a summary of "El cuidado como cuestion social desde un enfoque de derechos" (Caregiving as a Social Issue from a Rights-based Perspective) Serie Mujer y Desarrollo no. 87 (Santiago, Chile: ECLAC, 2007).