Human right to care | Article

The Supreme Court of the Nation (SCJN) decided on October 18, 2023, two measures of protection that are of particular importance to Mexican society. In both cases these are family and personal issues, but their consequences have extremely beneficial social consequences for expanding the protective framework of human rights, since they represent the guiding criteria for the administration of justice, but they must also guide public policy.

The first of these protections relates to what can now be called the human right to care. Based on the determination made by the First Chamber of the ECJC, it is interpreted that based on the constitutional text as well as various international treaties, it can be recognized that “all people have the human right to care, to be cared for and to be cared for, and the state plays a primary role in its protection and guarantees.”

It should be emphasized that this definition recognizes three aspects of the same right. First, care is seen as a right. In other words, it is not only a duty, but also a right of every person who has the desire to provide support or care to others.

The second dimension is that all people have the right to be cared for; That is, there is a recognition of the state of constant human vulnerability, that is, the possibility of harm and being in situations of helplessness, absolute or relative, and, therefore, it is recognized that the person has an inalienable right to be every person who needs to be cared for, especially in circumstances of special need, as may be the case for people with one or more disabilities, older adults, or people with chronic illnesses.

The third recognized dimension is self-care, which is completely new in the field of justice protection, since it will be necessary to determine, for example in the field of public policy, what measures should be taken by the State, as established by the Court, to protect and guarantee it. In this sense, one can think, to give just one example, of the necessary review that all government bodies at the three levels of government should undertake regarding their prevention policies and programs, since self-care is a human right. policies on this issue must be consistent with international and constitutional standards on these issues.

Like any right, the interpretation of the prerogative to care has a limitation: it does not come at the expense of the health, well-being or life plan of those being cared for; but it equally liberates people from being constrained by “gender mandates, which are a matter of social justice in favor of women and girls who predominantly bear caregiving responsibilities.” The corollary of this is that no one can be forced to remain married under the protection of this right, since “the care should not rest solely with individuals.”

Finally, the Court indicated that care should not fall disproportionately on families, meaning that there must be a sufficiently strong institutional framework to facilitate the implementation of this now clearly recognized right.

On the other hand, the second proposal mentioned above is related to the implementation of the so-called “double working day”. In this regard, the SCJN states: “In the event of marital dissolution, someone who worked a “double shift” may be entitled to compensation for the existence of opportunity costs as well as economic imbalance, and will enjoy the presumption of “predominantly devoted to housework or care work.” children.”

This definition includes a very important test because it establishes that the burden of proof is to demonstrate that the double-timer was not primarily devoted to the care and protection of his daughters and sons; and it is up to the defendant to discredit this allegation.

Internal arrangements, when they occur in a generalized form, and also when they operate as a “social norm”, are an unequivocal reflection of the system of values ​​and principles operating in society, always associated with exercise. authorities, which in this case, without exception, generally act in favor of men with the predominance of the patriarchal model.

In this sense, it is appropriate to highlight the advanced position that the SCJN has taken in these matters, since its decisions not only recognize social reality in complete transformation, but also build new principles of action that, perhaps without even intending, are pedagogical in nature for society and organize new mechanisms for greater fairness and equality that should help achieve respect for the constitutional and legal right to equality.

For many years, Mexico has discussed the possibility of creating a national care system; In fact, there are several proposals that include funding mechanisms and ideas about the institutional architecture that this system should have. Without a doubt, the criteria defined by the Court will be an additional element relevant to ensuring that this system can be implemented in the medium term and thus continue to move towards building a country of human rights and effective conditions of equality.

Researcher at PUED-UNAM