Puerto Rico hadn't updated the laws that define a person's day-to-day life since 1930. Seeing an urgent need to replace them in a way that reflects modern society, Gov. Wanda Vázquez signed a new civil code into law this month.
But critics say some of the laws represent a "historical setback."
The new civil code, considered the second most significant legal document after the Puerto Rican constitution, infringes upon the "human rights gains of women and LGBTQI+ people" by giving rights to fetuses, limiting people's ability to amend their birth certificates in ways that are consistent with their gender identities and failing to "explicitly prohibit discrimination," according to the advocacy group Comité Amplio para la Búsqueda de Equidad, which loosely translates to the Committee for Equity.
The word "discrimination" doesn't appear in the new civil code.
The updated language, set to go into effect in November, recognizes an unborn child's "condition as a person," adding that it's "considered born for all the effects that are favorable to him or her." However, it also states that "the rights recognized to the nasciturus [unborn child] are subject to it being born alive and in no way undermine the constitutional rights of the pregnant woman to make decisions about her pregnancy."
Miguel Garay, a law professor who advised legislators creating the new civil code, said on a webinar last week that they were thinking "about the mother who doesn't want to have an abortion" while also preserving a woman's right to an abortion.
"There are protections that people are going to want to give an unborn child," Garay said in Spanish, adding, for instance, that "in estate law, there are people who are going to want to leave an inheritance."
Puerto Rico is a U.S. territory, so abortion rights exist through the Supreme Court's Roe v. Wade ruling, Pedro Julio Serrano, a spokesperson for the Committee for Equity, said in a radio interview last week.
"But granting rights to an unborn child means that the government could intervene and place more obstacles later on," Serrano said in Spanish. "It opens the door to start limiting abortions in Puerto Rico."
Puerto Rico is no stranger to such efforts. Over the past year, conservative lawmakers have tried to pass legislation to limit women's access to abortions. Rep. María Milagros "Tata" Charbonier, president of the commission within Puerto Rico's House in charge of creating the new civil code, supported bills looking to limit abortions. She also spearheaded an unsuccessful attempt to block same-sex marriage in Puerto Rico after the Supreme Court legalized it in 2015.
Charbonier and other conservative lawmakers have the support of many religious conservatives. Fundamentalist leaders like the evangelical pastor René Pereira and others have slammed Vázquez and lawmakers for legalizing the new civil code because, they say, it incorporates pro-abortion rights and pro-surrogacy language.
"There's great displeasure among Christian people with what the governor has done and what the Legislature has also done," Pereira said on his radio show.
Since she signed the new civil code into law, Vázquez has doubled down on her belief that it doesn't violate anyone's rights.
Worry over protections for trans people
The new civil code states that people cannot change the sex they were assigned at birth in their original birth certificates. That, according to the Committee for Equity, is effectively "jeopardizing the rights of trans people."
Victoria Rodríguez-Roldán, a lawyer and the director of the nonprofit Trans/Gender Non-Conforming Justice Project at the National LGBTQ Task Force, told NBC News that "this type of action by the government, the Legislature, and the rhetoric that comes from the religious right inflicts physical harm" on trans people because it fuels "hate crimes and allows families to reject their trans relatives."
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Since 2018, transgender people in Puerto Rico have been able to correct their birth certificates to reflect their gender identities after winning a 15-year legal battle in federal court. Since then, a trans person can go to the Demographic Registry with an order from a social worker or a medical professional "who puts their credentials on the line" guaranteeing that a person lives with the gender of their preference. "You submit that alongside other documents, and you can get a fixed birth certificate in 20 minutes," Serrano said.
The new civil code seems to roll back those protections when it says "no amendments to the sex a person was born with can be authorized in the original birth certificate," adding that a court is the only entity with the power to "make an annotation next to the original sex designation" if a person wishes to correct their designation after birth.
José Javier Lamas, president of the Puerto Rico Bar Association's civil law commission, said on local radio last week that the annotation process perpetuates discrimination against trans people, a point raised by equal rights organizations.
"The birth certificate is used to access a lot of basic needs in our society," Serrano said. "If every time a person shows it they have to explain why that annotation is there, you're violating their dignity, because trans people don't identify as such anymore."
While the new civil code uses language explicitly banning sex changes on original birth certificates, at the same time it also appears to try to uphold the rights trans people earned through the 2018 case Arroyo v. Rosselló — saying that "nothing here established detracts from the process already in place."
Omar González-Pagán, a senior attorney at Lambda Legal, the nonprofit that represented three transgender Puerto Ricans in the 2018 legal case, said in a statement that while parts of the code seem "to be consistent with the federal court's judgment in Arroyo v. Rosselló," it still falls "woefully short of reflecting the progress we have made in our society."
Rodríguez-Roldán, who was also one of the plaintiffs in Arroyo v. Rosselló, said she feels "very sorry that they're trying to take steps back even though they have a federal court order that requires them to follow the constitution, to follow the law and allow trans people like me to obtain birth certificates that reflect our identity."
'Positive and negative,' and a lot of litigation
Lamas said the new code has "positive and negative parts that are going to create a lot of litigation and that are going to put some of our acquired rights at risk."
The old civil code states that a marriage can take place only between a man and a woman, Garay said. But the new one defines marriage as a union between "two natural persons," acknowledging same-sex marriage.
It also cuts back on some of the laws that made circumstances around divorces, wills and inheritances a traumatic experience for many families in Puerto Rico, Garay said. Among the new changes: Couples getting divorces no longer have to justify their decisions in front of judges, and inheritors are not responsible for the debts or obligations of those who died.
But when it comes to unmarried couples, the new code has no legal framework to provide rights, Serrano said, "at a time when less couples decide to get married."
Lamas and Garay agreed that the topic of "surrogate mothers" is poorly addressed; while it recognizes the existence of surrogacy, there are no provisions to regulate it. The code only "contemplates some scenarios of surrogacy motherhood," said Lamas, adding that "it doesn't take artificial insemination into consideration or other types of alternate reproduction." Garay anticipated a need for "special laws" to clarify some of those points.
Garay pointed out that this is the first time Puerto Rico has a say in determining some of its basic rights, because the old civil code was largely imposed when the island was a Spanish colony.
Questions about timing
Throughout the years, proposed amendments to the code were occasionally put up for public comments, Garay said. But in May, amid the coronavirus pandemic, the Puerto Rican Senate approved the latest version and added about 60 last-minute amendments without holding a public hearing. Critics saw the move as a way for lawmakers to avoid pushback, and they raised concerns over unforeseen loopholes.
Senate President Thomas Rivera Schatz tweeted last week that the code "fully guarantees the recognized rights of women, the gay community and other sectors of the population," echoing some of the governor's remarks.
Islanders and legal professionals now have 168 days "to understand how 1,820 new articles are changing many aspects of their lives" before it goes into effect in November. This includes "the ways in which we marry, divorce, legally deem a person as disabled and the relationships between debtors and creditors," among other things, Lamas said.
At the same times, this is happening "in the midst of a pandemic, when people are seeking to reintegrate into society under a new normal, and in an election year."
These are some of the reasons the Puerto Rico Bar Association is urging the government to delay implementing the new civil code by a year.
Vázquez has said several times that she believes a little over five months is more than enough time for the transition.
Garay pointed out that as long as the new code doesn't go into effect, "the code that still says that marriage is between a man and a woman" will remain valid.
"I think the new code is way better overall, even though I can't say it's a wonderful one," he added.