Legal Principles

LEGAL PRINCIPLES APPLIED TO CAREGIVING

The laws and covenants outline the following rights. Their application to caregiving and current deficits in applying them are described.

1. Every individual is equal before the law and has the right to equal protection of the law without discrimination 

            * caregivers in the home have been excluded from lists of professions,

            excluded from tallies of labor force, work and economic productivity.

            This exclusion has denied them equality of recognition as vital

            members of society and contributors to its well-being.

2. All human beings are born free and equal in dignity. Human dignity is inviolable. It must be respected and protected.

            * caregivers in the home have been excluded from  categories even

            in the professions that are listed as providing care – daycare workers,

            nannies, eldercare workers, home care workers.  This exclusion

            denies them the dignity of noticing that the tasks performed are

            the same as those done by those who are paid for the role.

            * caregivers in the home  have been stigmatized as not working,

            taking time ‘off’ work, even though their roles involve vital tasks in the household

            and that domestic work is time consuming labor that ensures

            well-being of others. Denying it the official status of work deprives

            those caregivers of dignity.

            * mothers in the home have been excluded from the category of ‘working

            mothers’ even though their role is both work and mothering. This exclusion

            deprives them of dignity.

            *-in many countries paid workers are given pensions based on their years of paid work, while caregivers in the home are not given such pensions, either from             employers or from state pensions. The poverty of the caregiver at the time of             caregiving, given that the role is unpaid, is therefore extended to a lifetime of             lower income, proportional to how much time was spent at home not earning.             This double burden of poverty now and poverty later, because of unpaid work,             deprives the caregiver of dignity

            *-in countries where pensions were eventually given also to those who had been             caregivers, they were often permitted only as s sharing of the single pension the        earner spouse had, so not a personal pension, denying the caregiver dignity and             recognition for her role and also requiring both parties to make financial sacrifice             in perpetuity for the years one of them was a caregiver.

            *-in countries where a pension for homemakers was given, it was given only             based on the age of the citizen as a universal benefit for the elderly and did not             itself recognize the work done by the caregiver in addition to the fact she had             simply gotten older. This allotment of pension therefore denied her dignity for             her service.

            *-in some countries like Canada where a pension formula was created to             recognize the caregiver role for a few years as unpaid, the formula for pension             amount was still based on paid work of the person, but excluded from the             calculation up to seven years of time at unpaid work.  This exclusion therefore             slightly increased the average amount of earnings on which pension was based             and increased the pension slightly. However because it did not count the             caregiving years as useful contributions but only forgave them, it deprived

            the caregiver of dignity for having done the care role.

3. Men and women are equal in rights and dignity and  are of equal value in society. . Equality between women and men must be ensured.

            *-equality is not superiority – women who want equal rights

            with men pose  no threat to men and are not trying to take over.

            The misperception that women were against men, rejecting

            men or devaluing men, that they were assuming men were oppressive

            and trying to keep women down was a tone of some women’s rights

            activists but was a regrettable and unnecessary approach that is inapprorpriate

            to equality. More recent statements of women’s groups have enlisted the

-*equality is not sameness –

            * the goal of equality does not require identical choices in equal numbers.

            Just as people of various hair colors all have equal rights, so too the goal is

            equality of value for the unpaid care roles with paid roles, equality of respect

            for whoever does them and how much they do them.  The choice of how

            much time a man spends changing  diapers or a woman spends cooking

            can be left to individual households to decide and should not be dictated

            by the state with benefits conditional on lifestyle.  The equality is in

            respect for however the couple decides to share the roles. Paternity leave therefore             that requires a man to be home with a child

            and is not transferable so the woman can be home if that is the couple’s

            preference, violates the dignity of choice. Not all households will

            choose equal time division of care roles but they all have equal rights

            to decide as they wish. Time use surveys that examine how much time men or         women do on domestic tasks are of interest to show the total time spent on care             roles but a goal of equal division between the genders, so they are spending the             same amount of time each on a role, is a violation of dignity of choice.

            * a goal of equal numbers of men and women in any given profession,

            at any level of government, in corporate offices, may seem to be equality

            and yet with free choice, it is possible that more women than men would choose

            certain careers in a given year and that men would prefer some roles over others.

            To aim at only women being able to represent the needs of women in a legislature

            does not recognize that both genders can be fair and attuned to fairness.  To

            aim at equal numbers of men and women in government can become its own

            discrimination based on gender.

-*equality is not of outcome but of opportunity for success

            * in democracies there is reward for effort, for study, for hard work

            and the rewards of this work are often personal satisfaction, happiness,

            sometimes income and sometimes social status.  People have the right to

            make lifestyle choices but that does not mean the state ensures that all choices

            they make will lead to personal fulfilment. The state does not in the US

            for instance guarantee happiness, only the pursuit of happiness, with the state

            setting up rights to set up equal  means to try to succeed.

            * some may fear that if women at home got status and respect and their own

            financial recognition for the care role, that this would be a reward for some sort

            of self-indulgence or laziness. There is fear that they would attain happiness

            and reward for ‘doing nothing;’.  Such a fear reveals the depth of

            misunderstanding of the nature of the care role and its hours and intense

            demands. But such a fear also reveals a perception that people’s happiness

            is always found only one way, in the home. Happiness is also attained

            in paid careers for many people, and in using skills and pursuing interests

            that end up with remuneration as well as benefiting others. Equality then

            is letting people have the range of legal ways they wish to contribute to

            society. Letting women at home be valued does not mean all women will

            then go back to the home.

*equality in state treatment

            * the role of the state is to not take sides, not to show preference between

            legal choices. If it funds care of children it legally should not preferentially

            fund care by a daycare over care by a  nanny, babysitter ,grandparent or parent.

            The best way to ensure equality is to have funding ‘flow with’ or ‘follow

            the child.

            * when government allow tax deductions for some costs of raising a child

            but only count receipted costs paid to third parties, they ignore costs

            incurred in the home for the exact same tasks performed by a family member.

            This ends up unequal benefit and fails to ensure equality and choice.

*equality is not directive to prefer some actions over others

            *a government that sought to enable freedom from hunger and to enable

            adequate nutrition might choose to provide free hamburgers for every

            one at noon daily at specific restaurants.  The intent of the policy may

            be nutrition but the policy would ignore the many other ways the goal

            of freedom from hunger and the goal of adequate nutrition could be met.

            Those who do not eat beef, those who do not like hamburger, those

            who do not live near that restaurant or those who prefer another  

            restaurant or to eat at home would be excluded by such a policy and

            unfairly. A plan to ensure that children in 3rd party daycare get fee

            or low cost care there, subsidized by the state, similarly may have as goal

            the well-being of children but unless it equaly funds care of children in other

            locations, care by parent, sitter, nanny, grandparent, it fails to provide equal

            benefit under the law or choice. 

            * a policy that claims equality for children in that all children have ‘access’

            to the 3rd party daycare and its state funding, also does not actually provide

            equality in practice for it is conditional on using daycare to get the benefit.

            As such it dictates a lifestyle and is  a violation of rights of choice.

            equality also needed between women and women .

            * the goal of equality has focused on equality between men and

            women. However over time a growing inequality has developed

            between women and women.  The goal of equality at paid work

            with equal pay was between men and women.  The goal of the domestic

            sphere that focused on equal sharing of a perceived burden of roles

            there was also between men and women. However the dignity and value

            of the care role at home was still treated as lesser and those women

            who had paid work often also felt they had risen, had escaped a lower

            status, a sentiment that also then perpetuated the devaluing of the

            care role. The ‘mommy wars’ between women with paid work and

            those doing unpaid care roles were portrayed in media as genuine hostility

            with each side claiming some moral or practical higher ground than

            the other. The goal of gender equality however must ensure that the

            various ways to interpret roles of women are also all respected equally.

            Women who work in the home and women with paid work outside

            the home can celebrate each others’ competence, skills and choices,

            and the last hurdle of this is to value the unpaid care role.

            *One misunderstanding of what it would mean to give women or men

            at home status, was that this would threaten advances women had made

            in the paid work field. This separation of women into camps amongst

            themselves does not attain the shared goal of recognition of value of

            work done. There is no threat to women with paid work if women

            with unpaid work also have dignity.

*equality is not attained if forced by its own discrimination

            *one attempt to change hiring policy that excluded women was to

            allow women but also to nudge employers to preferentially hire

            women for a time.  This affirmative action policy that did see more

            women in higher levels of business and industry has changed the

            climate of some offices and made them realize considerations they may

            not have thought of earlier. However such a policy long term to favor

            women over men is not wise, and has a risk of hiring and promoting not

            based on competence and skill but on the basis of gender. That would

            be in essence a policy of gender discrimination to fight gender discrimination

            and as such is not only unfair but inconsistent. Ideally men and women

            would be valued for their roles, for the work they do, for their skills

            regardless of gender and that would apply for paid roles but also for

            unpaid care roles. As such, men who chose to be caregivers

            would not suffer stigma either.

3. Men and women are equal in rights and dignity

The issue of gender discrimination is complex because it has become so ingrained in society that it often has been melded into other discriminations.  These links must also be examined and addressed.

*complexity of gender discrimination to be linked to profession

            -in many countries women were excluded from some careers such as

            law enforcement, firefighter, soldier. Any roles done by men

            were seen as stronger, more powerful, more heroic than roles

            done by women

            *the one at home was less visible to lawmakers so their work was less noticed in

            business and government so did not even seem to be in a profession

            *the one at home dealt with mundane tasks like cleaning and changing diapers

            which had less glamor than paid work, less travel, fewer titles, less status /

            The effect was that whoever did that mundane role,

            even if male, was deemed lesser. The discrimination was so entrenched

            that it became about any role women had historically done. Male daycare workers             and male children’s camp instructors

            were paid equally with women in that role,but the role itself was underpaid

            because of its gender association. Fathers at home discovered that they

            too were treated as less useful in society than men with paid work, as

            women  at home had always been treated, and though there was therefore

            no discrimination based on gender for doing the care role at home,, there was

            discrimination analogous to gender because of the role..

            * the expertise of women in their traditional fields of cooking and care

            of children was also for a time devalued so much that the person deemed

            expert in those fields was often a male pediatrician, a male doctor telling

            women how to breastfeed,  a male chef telling women how to cook.

            The bias of only considering expert a person who was paid for what

            they said or did, created a historic imbalance to be blind to expertise

            of lived experience.  This blindness became so intense that a person

            applying for a job as a nanny was not considered to have any experience

            if she had taken care of her own children but only if she had previously

            been paid to provide care of children of others. The bias was so intense

            that a ‘childcare ‘ expert deemed so by government or media was

            someone who was paid to provide care such as a daycare worker

            but not a parent or grandparent even if they had many years taking

            care of children and many children.

*complexity of gender discrimination to be linked to age – based discrimination

            *in many countries girls were expected to mature more quickly

            than boys and were treated as adult offenders younger than

            were males of the same age (boys will be boys laws)

            *in many countries women were required to appear youthful

            to be valued while males were allowed to visibly age.

            In the entertainment industry middle aged women had trouble finding acting jobs      while middle aged men were still easily employable. In the fashion

            industry and on screen TV employment, women were

            required to look young while men were permitted to be

            older

            *in many countries elderly men and men both suffer social stigma

            but wisdom is often assumed from elderly men while the

            insights of elderly women are often mocked as ‘old wives’

            tales’

-*complexity of gender discrimination to be linked also to marital status

            *in many countries women on marriage had to leave careers of nursing

            or school teaching.

            *in many countries for married couples, it was assumed that the

            man not the woman owned the home, was listed in the telephone

            directory, was ‘head of the house’ and made all key financial

            decisions. Single women were given more latitude. Single women got the vote      and property rights before married women did. Married women were more             restricted in how much money they could have in their own name in a bank, while             single women had fewer restrictions.

-*complexity of gender discrimination to also be based on poverty and wealth

            *Unpaid roles  were put into position of forced dependency on men

            and by this status were facing precarious financial stability and risk

            of poverty.  The role got associated with poverty and led to the

            assumption that women are only worth less money, or have less

            need of money so pay of women was kept low. The assumption of poverty being             evidence of lower status became its own barrier so that a mother in poverty was             also deemed a poor mother, in skills and competence.  Mothers in poverty have             had their children taken from them at birth on the assumption that the

            poverty itself put the child at risk and that the state’s role was not

            to alleviate the poverty but to remove the mother from the child.

            Mothers have given up babies for adoption or even sold them

            illegally simply due to poverty.  So poverty has been a key

            factor in the gender discrimination.

            Wealth has also been used as a factor to discriminate against women

            Married women with property were given the right to vote sooner

            than were married women without property.

-*complexity of gender discrimination to also be based on child-bearing

            *When in  paid work many women were able to get job promotions the

            same as men until they gave birth at which point they were assumed

            to not want them or be able to handle them and were put on a lower

            earning, less advancing ‘mommy track’.

            *Social recognition of the needs of children for parental presence

            changed slowly from respect for the role, to pressure to do the

            role, from accommodation to expectation but without financial

            support for it. This shift made it so that once women had a child

            they were expected to not run for political office and were deemed

            unavailable for the more prestigious roles of paid work.  This further

            stigmatized the care role as if it were a step back, out of useful service.

            In expectation of this change in attitude to paid work once a woman had

            a child, some employers adopted policies officially or not, to not

            hire women who were pregnant or even who were likely to become

            pregnant because they were of child-bearing age and legally married.

            Adjustments of the women’s movement to insist that the employer

            remove such biases based on gender and pregnancy, enabled mothers

            to still have paid jobs and to also advance in caree. Howevr such efforts

            to prove children were not an obstacle paid work were not parallled with

            efforts to value care of children as equivalent to paid work.  The push to

            get women who have children equality in the paid work arena, tended

            to also further stigmatize women who did consider having a child a reason

            to changer career fofcus and to spend time raising the child.  The

            liberation of women to full equality with men at the paid job, was

            slowly morphed into a misconception that the liberation was also from

            having children and taking care of them, as if children were an obstacle

            that must be overcome. This half way point of women’s rights had not

            yet argued that to have paid work is good and to be home with

            a child is also good.

*complexity of gender discrimination to also be deprivation of full personhood

            * in come countries the married woman took the last name of the man and             forfeited her own last name on marriage

            *when family traditions were celebrated, or family ancestry was traced

            it was often done through mostly the male line

            * when a woman wanted to write a cheque or use a creidt card from

            a shared bank account, she was sometimes required to get permission

            from her husband to do so

            * when women at home were recognized on a tax form they were designated

            dependants not fully functioning partners in the household. The amount

            of the deduction was in some countries lower than for the earner, therefore

            less than the deduction of any adult person, as if the caregiver spouse

            was lesser than full adult and more like a child.

*complexity of gender discrimination  to linked to discrimination in power, decision making and formulation of laws

            *women excluded from consultation, from votes, from eligibility to

            be in government were not part of the discussion.

            *Even when eligible to be consulted, government often did not know

            how to find the unpaid caregivers. The invisibility of the role and the lack of free             time or money to organize made it so caregivers in the home were not in             identifiable registered organizations listed in directories with elected             representatives that  government could easily consult as stakeholders

5. Every one has the right to recognition as a person before the law  and this includes the care receiver

            *the child is a person, a full individual and though not given the same rights

            as adults, is entitled to the right to life, to security and other protections

            the same as adults, from birth.

            * in decisions about the care of the child, the preference of the

            child to who will be the caregiver should be part of the discussion

            and the opinion of the child is to be respected and sought, commensurate

            with the age and maturity of the child. Children tend to prefer care where

            they feel loved, where they feel personally noticed and valued for their

            uniqueness, and where there is stability and the same caregiver over many

            years. Children enjoy playing with siblings and friends, and like to play

            but a key focus for them even for babies is often first priority that they

            feel loved.

            -The handicapped, frail elderly and dying also are fully human

            and have all of the rights of other citizens as much as they are

            able to enjoy them.

            * The handicapped, frail elderly and dying also have the right to dgnity

            and to agency, to make decisions about things that concern them and

            to wherever possible choose the type of care they need and want, the

            religion and language and dietary provisions they need and the identify

            of the caregiver and the care location they prefer.  They as full

            persons in society must be respected for those preferences and states

            must do what they can to ensure the options are equally funded so there           

            is genuine choice.

5.The family is the fundamental unit of society and the State must afford it the necessary legal, economic and social protection to assume its responsibilities.

            * It is a violation to have policies that count being family member against

             a person and yet several policies currently do so. When deductions for care

            of a child cannot be claimed if the caregiver is a family member of the

            child, this exclusion violates the principle to assist the family.

            *-governments that create tax systems to recognize there are costs to caregiving,            may permit income splitting, horizontal taxation, declaration of household based   not individual based tax, may set up birth bonuses, family allowance, child             dependent deductions, child tax credits to ensure that raising a child is             affordable and children are not in poverty. Nations that do not adopt any

            of these measures are not recognizing the legal principle about the family.

            *Governments that fund care away from family more generously than

            they fund care within the family also violate this legal principle. Those that

            preferentially fund daycare over care at home are not preventing families from

            existing or functioning but if they discourage time together and preferentially

            fund time apart, they tilt the balance and violate principles of choice

            and equal benefit. Unless funding for daycare is matched by funding for other

            care styles it violates the tax principle.

            * in some countries though a family is no longer seen as an entity

            deserving special tax status, governments still permit a family business

            newly to claim that those who work within it who are family members

            can each be paid. This recognition that family members are independent

            and full persons in their own right and that their labor has value regardless

            of their identity and relationship to each other is a useful concept

            It would be logical to apply it more widely to note that all families

            are composed of full people and their relationships often are interdependent

            not just one way dependant. These insights may help remove the bias

            against the family that violates the legal principle and that has led in the

            past to not letting families deduct costs of children’s care if the care

            is provided by a family member.

            * in some nations a family trust can be set up in wealthy families only,

            where income can be distributed between members, to reduce or defer

            tax. The fact this is possible recognizes that many households do share

            income and to be consistent that any family that shares income should logically

            be permitted to declare itself as doing so and to be taxed as a household

            at lower rates per person than as individuals with vastly unequal income.

            * the existence of an option for a wealthy family to invest in savings

            for children and get matching funds to do so from the state , the option

            of wealthy earners to declare themselves a professional corporation and

            the legally pay spouses to serve as their secretaries from the home, and

            the option of wealthy households to set up family trusts and redistribute income             among family members does follow through on the legal principle of respecting

            the family. However since it is a tax option only for the wealthy, the operation

            of it is a discrimination based on income and harms the poor. The inequality

            could be addressed by ensuring the poor could also claim and enjoy

            such tax status.

6. People have the right to privacy, to being considered innocent until proven guilty and to freedom from arbitrary or unlawful interference from the state.

            *Financial support for caregiving by non-family members is sometimes argued

            to be the only fair type of support because it is at arm’s length, free of blood

            relation prejudice, and can be regulated, and inspected by the state. The case

            is made that the family, being entitled to privacy, therefore cannot be adequately

            inspected so there is on proof it would spend funding wisely. However this

            argument fails to recognize that when salary is given to workers, the employer

            does not dictate how much they spend of it on food or housing They are trusted

            to make legal financial decisions on their own. In a similar way, family members

            providing care should be trusted to spend any government funding for care wisely

            and not be required to produce receipts to prove they deserved the funding for

            some purchases approved by the state .

            * the idea that family members are not under scrutiny is also inaccurate since

            they already are subject to all the laws of the nation protecting the rights of

            children. Parents already have many legal obligations to provide the necessities

            of life and they also risk huge penalties for failure to do so, including loss of

            custody of the child, loss of access to the child, and even imprisonment if

            they violate some laws. The proposal to fund care of children wherever the

            child is, even if at home, is logical since in all locations there is already

            scrutiny and legal liability.

9.No one shall be held in slavery or servitude;

            *historically the role of caregiver in the home may have started as one of

            sharing the hearth and partners but over time quickly evolved into one of

            recognizing only paid work and forcing the caregiver to be financially dependent

            on the earner. This forced dependency not only deprived the caregiver, usually

            a woman, from recognition of her own role, and of her own financial security

            but also tended to be seen in political policy as a role of obligation to serve

             in order to get that financial support. When women objected to being

            treated as lesser for the care role, the misconception emerged that the

            problem was the care role – and some women then chose to escape it

            and get paid work. What actually was the hurdle was however the forced

            dependency and perception of required servitude – the role itself was

            stil vital to provide care of others. The problem was not that the role was

            useless but in its status as forced, and a cage preventing freedom. 

            The solution for full equality of women is not to escape the role in society of             taking care of those who need care, but to escape seeing this role as a useless role      or a lesser role or an obstacle to doing other things more useful.

            *when governments pressure women to have paid work outside the home

            this enabling by removing benefits like family allowance or child

            dependent deductions or household based tax actually have made things

            worse for caregivers and have tilted the discussion so that being a

            caregiver in the home is seen even more strongly as a less noble

            choice, made less affordable and forcing those who still want to do it

            to be even more dependent on an earner. The policy that was to

            reduce dependency and give women more independence has

            had as consequence to force some women into greater dependency

            on a spouse because the state had removed most supports

            that would have given dignity.

6. Maternity is a social function. Motherhood is entitled to special care and assistance.

            *This special care and assistance implies not only accommodation at the

            paid job, for time away from the tasks during pregnancy and labor

            and for breastfeeding. It also implies special care and assistance from

            society for the role of motherhood.  To ensure the full application of

            this principle, funding should flow to motherhood itself, and be

            available to mothers in the home, and not conditional on paid labor force

            activity.

7. Every individual is equal before the law and has the right to equal benefit of the law without discrimination.

            * states that fund daycares for children directly, and give extra deductions to

            parents for out of pocket expenses for fees there also, get more funding

            than do parents who use care by sitters and nannies. The state is funding

            directly on behalf of all taxpayers, one care style- daycare. Only those

            who use the daycare get the benefit but all have to pay for it.

            * states that reduce taxes for parents who pay nannies or sitters ot

            daycare workers give a financial benefit to them for their care choices

            that is not matched when government does not equally fund care

            at home by a family member. Its blindness to costs in the home and

            to salary sacrifice there results in unequal funding and unequal benefit

            under the law, both of which violate the legal principle.

8.Children are vital to the well-being of society and deserve the support of the state the child shall enjoy the benefits of social security, special care and protection.

            *Every society needs children to perpetuate itself

            * Governments need adequate revenue to meet expenses and this

            revenue comes for taxpayers, citizens who grow up , age and

            retire and die. Nations need children to perpetuate the tax base

            and a birth rate of 2.1 has been estimated as necessary to ensure

            that each generation produces eventually enough taxpayers to balance

            future budgets.

            * when governments devalue careigivng and defund it, people tend

            to have fewer children and this threatens the tax base

            *when governments devalue caregiving and defund it, when people

            have fewer children than they would like, and when they are only

            rewarded for and nudged to do paid work full time, the level of stress

            and unhappiness people have increases. This can lead to drop in

            job productivity, to job absenteeism, to workaholism and burnout,

            and to stress, anxiety and depression.  These downsides of only

            valuing paid work can create new costs to individuals and ultimately

            to government in health care, unemployment, mental health treatment,

            and in social services. People need a sense of agency in their lives and in freedom

            to choose how much of their lives they devote to paid work

            and how much time they have for family and leisure. An economy

            that only values paid work may cause itself huge expenses.

            * care of children has been treated in much legislation as a burden,

            an obstacle that families have to escape in order to perform paid work

            Seeing the role as a hardship, and government as rescuer to provide

            state funded care in formal group settings so that earners can earn,

            may seem to value care of children but actually sees it only as

            a stepping stone to a great goal – earning. Such a policy does

            not meet the legal principles of valuing family, of respecting

            children or of assuring decisions consider the best interests

            of the child.  Some children thrive in large group care. Others

            do not.  To allow the diversity and fund the child wherever

            the child is is the way to treat children and their care

            with respect.

10. Parents and legal guardians have the primary responsibility to secure the conditions of living necessary for the child’s development.  The state shall take appropriate measures to assist parents in achieving these responsibilities.

            * often recently governments have moved to take over parenting from parents

            and to not only preferentially fund care by 3rd parties not family but to also

            give advice and counselling rather than funding to parents.  This approach of

            the state assuming it has the expertise and that parents do not, is a violation

            of the legal principle.

———————————–

 

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