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A correction.

216.169.65.92

Posted by Ears on April 25, 2000 at 23:49:51

In Reply to: Re: I wouldn't have handed him over either. posted by dave on April 25, 2000 at 12:35:22:

I wasn't as accurate as I would have wished in my earlier message. I haven't been able to find a reference in Cuban law that says that children are possessions of the State in those words. It was actually a Cuban government spokesman who said that Elian is a possession of the Cuban government. However, the Code of Children and Young Persons makes it clear that Juan Gonzales has no parental rights in Cuba. But we already knew that, didn't we? I ran across a message while reading about the Elian saga which puts forward my views and feelings about the matter far more eloquently than I could myself. I hope the guy that posted it won't mind my copying it over to here:

***[Herman Jacobs, University of Chicago] If only life were simple--and not so tragic.
Whether it would be best for a boy to live with his father, but without freedom, or to live in freedom, but without his father, is a horribly tragic question, but not a simple one.

By my point of view parental "rights" are really parental "duties," because those "rights" exist not for the parent's benefit but because we wisely recognize that it is almost always better for children in the long run if the persons most closely attached to them by blood, affection, and proximity make the decisions about their upbringing. This is almost always better, but not always better. Governments rightly intervene when an assertion of parental "rights" threatens serious and lasting harm to a child.

I personally think the question of Elian's father's capacity to make this decision freely deserves a more thorough consideration than was given in the INS "investigation," which was completely lacking in any due-process protections for Elian, protections such as the right to confront and cross-examine under oath the witnesses whose testimony presumably formed the basis of the INS decision. The present indications are that Elian's father wants to be a good parent, yet the question still remains whether the conditions in Cuba, along with the conditions peculiar to Elian's situation, will allow Elian's father to be the good parent he seems to want to be. This is not, as some would have it, merely a political contest about "ideology," because in Cuba Castro's "ideology" has grave consequences in the lives of ordinary people. Putting the matter in more extreme terms, I would say that if a man is trapped in a burning house, no parental right requires that his son, who has escaped the blaze, be sent back into the flames "to be with his father," even if that is what the father wishes. Perhaps comparing Castro's Cuba to a buring house is excessive; perhaps it reflects an anti-Castro bias; but perhaps there is some truth in the comparison that must be taken into account.

So those who are to decide whether Elian should be sent to his father must ask, Can Elian's father now protect him from the very real threat of Castro's oppression? This question deserves especially serious thought because, if the child is returned to Cuba--so long as Castro or someone like him is in power--Elian will not be able to enjoy even the shred of security and freedom that ordinary Cubans retain solely by virtue of their obscurity and anonymity. Though regretable, this "politicization" of Elian is an accomplished fact which cannot be undone and which must be considered. Perhaps if this situation has been handled more discreetly and with less fanfare on both sides, it would have been more clearly appropriate to return Elian to whatever constitutes a "normal" life in Cuba. But now that Elian has become such a cause celebre both here and in Cuba, if the boy returns to Cuba, don't you suppose that Castro will take special "care" to make sure that Elian does not become a propaganda embarrassment? What might Castro do if, at ten years of age, he begins to show any sign of "counter-revolutionary" thinking? What might happen if Elian--declared a "hero of the revolution" the day he returns to Cuba--eight years later were to announce that he wished he could live in freedom? Don't you suppose Castro will keep Elian under particularly intense scrutiny to make sure that doesn't happen? If you think such questions are merely hypothetical and reflect an anti-Castro bias, perhaps you should read what orginizations such as Human Rights Watch have written lately about the pervasiveness of Castro's repressive machinary. Then consider how that machinary might be brought to bear particularly against Elian to keep him under control--even while he is yet a child--not to mention when he becomes an adult.

Perhaps you should also make yourself familiar with what Cuban law has to say about the relationships of parents, children, and the state. Under Cuban law, the state--not the parent--has complete authority over children's upbringing. Wouldn't it be ironic if the US government--in deference to parental "rights" which Cuba does not recognize--would not even allow a court to examine what might be in Elian's best interests. It is a curious and faulty logic to say that, in order to uphold the principle of parental rights, the US government must honor Elian's father's parental rights, when Cuban law says Elian's father has no parental rights. The INS is attempting to recognize an exercise of rights which the Cuban government simply does not allow Elian's father to exercise. So though Elian's father may be ENTITLED under US law to exercise parental rights, the ACTUAL exercise of those rights cannot occur so long as Elian's father is subject to Cuban law. Simply put, where Cuban law prevents the actual exercise of parental rights, the US should not feel constrained to honor the form of an exercise of parental rights when the substance of the exercise of those rights is lacking--especially when the putative exercise of parental rights threatens the long term best interests of the child. I, too, believe in upholding the general principle of non-intervention into exercises of parental rights (understood more precisely as exercises of parental duties). But when the actual substance of the exercise of parental rights is only a fiction, we should not sacrifice the goal of parental rights--the goal of serving the child's best interests--in order to uphold the mere form of parental rights.

I do not suggest that the United States government begin to inquire and intervene into the relationships of all parents and children, foreign or citizen, who happen to be within our country's boundaries. Such intrusion would be unwise and unjust. However, the moral rule, if you will, is different because of the fact that Elian arrived on our shores without a parent at his side. When a lost child comes into one's care, one has a moral obligation greater than simply to return the child unquestioningly to the circumstances whence he came. Our government has partly fulfilled that moral duty by inquiring into the whereabouts and circumstances of Elian's father. However, because the political conditions in Cuba will not be neutral factors in Elian's future, but will be peculiarly signifigant in his particular circumstances, we are morally obliged to consider how those political conditions are likely to affect him not only now, but for the rest of his life.

The very sad question really is freedom versus family. That is a tragic question, one that no one should ever have to face, but one that must be dealt with now. Just as we take account of the father-son bond, so also must we try to take account of the value of freedom for a full human life. And since Elian will be a child only twelve more years, but will--God willing--live as an adult another fifty years, we must not carelessly condemn Elian to what might be an entire life without freedom. Even if we could be sure that Elian could live a contented childhood in Cuba, it is wrong to say, "Let the childhood be contented, and let the adulthood take care of itself." All good parents pray that the joys and blessings proper to childhood be fulfilled in their offspring, yet they also know that childhood is not an end in itself, but serves by nature as preparation for a fully developed adulthood. A fit parent considers not only what will make a child content in the brief span of his childhood, much less what the parent wants for himself, but more especially what will be best for the person's entire life. A boy needs his father--but the boy will very soon grow into a man, and a man needs his freedom.***

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