The constitutional right to care in Chile: a change in the social pact

The proposal for a new Constitution for Chile has been described as "a Constitution for the 21st century" for being a project that incorporates ecological challenges, designs a parity and inclusive democracy, recognizes the different nations that coexist within the limits of the State, decentralizes power and contemplates a robust bill of civil, political, social and environmental rights.

One of the new rights included in the proposal and that includes the contributions made by feminism and the academy dedicated to gender constitutionalism is the right to care.

Article 50 of the draft of the new Constitution declares that every person has the right to care and that this includes the right to care, to be cared for and to care for oneself.

It adds that the State undertakes, through a Comprehensive Care System, to guarantee that care is decent and carried out in conditions of equality and co-responsibility.

This system will not only watch over those who require care, such as children, sick people and those elderly and disabled people who have this need, but also for the protection of the rights of people who carry out care work.

The right to care is new, but it is much more than that, it marks a radically different way of understanding constitutionalism.

It is one of the axes of a feminist Constitution, that is, of a Constitution that ensures the elusive equality between men and women, for which it proposes a new way of understanding the political and social pact on which we base our life together.

Contemporary constitutionalism is founded on a conviction that was solemnly declared at the end of the 18th century and that we must treasure as one of the great civilizational leaps of humanity.

It was then that it was affirmed as an evident truth, in the Declaration of Independence of the United States and in the Declaration of the Rights of Man and of the Citizen of France, that all men are born free and equal and that they have inalienable rights.

In political terms, the importance of these declarations is that they establish that the purpose of political associations (that is, of our social pact) is the protection of human rights and that the legitimacy of governments depends on the consent of the governed.

This conviction remains the pillar of constitutionalism to this day.

However, as is known, neither before nor now has the universalism proclaimed in the phrase “all men…” been such.

Only with difficulty and long struggles has progress been made in equal rights for the great majority who were excluded from the most basic citizen rights.

A central aspect of the exclusion of women, who make up more than half of that universe, was a consequence of the constitutionalism of the 18th century, instead of questioning the gender order existing at that time under the premise of universal equality, It naturalized its components, among others, the sexual division of labor.

That division was based on the idea that there were two separate spheres.

In the public sphere, rights (“public liberties”) operated, logics of justice prevailed, productive work was carried out and citizenship was exercised by men.

The private sphere was the sphere of reproductive and care work.

The State supposedly did not intervene in it (for this reason the laws entrusted it to the authority of a male head of the family) and women, relegated to the private sphere, were supposed to be represented in the public sphere by their parents or husband.

In this way, and as Carole Pateman eloquently explained, the social contract was founded on a sexual contract, which only a few decades ago has been questioned in the field of constitutionalism.

Of course, the world of the public, of politics, or the market cannot exist without the care work that is carried out in the private sphere.

People spend a large part of our lives being raised, clothed, fed, content in our physical and emotional needs, cared for in sickness and old age, etc.

Currently in Chile, 71.7% of this domestic and care work is done by women and is equivalent to 22% of the Expanded Gross Domestic Product, which exceeds the contribution of all other branches of economic activity (ComunidadMujer, 2022).

The consequence of this sexual division of labor has been that both politics and the world of paid work were organized on the assumption that their participants were autonomous people who had no responsibility for care.

The recent entry of women into the public world has been at the cost of a phenomenal effort to try to adapt to structures that are not designed for people who have care responsibilities.

The historical division of roles is also associated with a series of stereotypes about what an ideal worker is (autonomous, ambitious, competitive, always available for work), which clash with what is expected of a woman (cooperative, willing to postpone for the rest, available for the family, modest), with which the difficulties of access are worsened by the operation of gender biases that assume the lower aptitude of women for citizenship.

As a result, women are not on an equal footing when it comes to participating in politics or the market.

This is not only unfair and violates the rights of women, but also means that the ways in which the public is understood and the economy is organized do not adequately respond to reality.

If that work stopped being done, the State would have to completely reformulate social policies and men would be forced to take care of their dependent family members and domestic work.

If care work is not made visible, public policies are built assuming the availability and free nature of female work, thereby perpetuating the sexual contract typical of a deeply discriminatory gender order.

By recognizing the right to care, to care for oneself and to be cared for, what is done is to correct a distortion.

It is a mistake to dehumanize both men and women by forcing them to inhabit only one dimension of the human (men, autonomy; women, dependency and care), artificially splitting the vital experience of one and the other, which naturally includes both dimensions.

The draft of the new Constitution, by recognizing domestic and care work and ordering that it be accounted for in public accounts, gives the possibility of looking at the design of public policies from a new perspective.

For example, the “bonus per child”, which is an amount that the State adds to the pensions of women who become poor due to gaps in social security when they have a child,

Making care work visible and valuing is the first step in distributing it both through co-responsibility within the family and between individuals and the society that benefits from it.

This distribution will allow women to contribute their talents to the public world, being able to dream of deploying new life plans.

To men, it will more naturally confront an aspect of their humanity that they have not been able to live properly: that of human fragility that derives from our dependence on one another, that place where the deepest experiences of love are born.

Verónica Undurraga Valdés

is a Law professor at the Adolfo Ibáñez University and director of Espacio Público.

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