No  021-01-00242/2018-02    Date: 7 September 2018

Acting within the framework of their legally prescribed competence[1]  to monitor the enforcement of laws regulating the prohibition of discrimination and recommend to public authorities and other persons measures for achievement of equality, the Commissioner for Protection of Equality addresses the following

      RECOMMENDATION ON MEASURES FOR ACHIEVING EQUALITY

The Commissioner for Protection of Equality recommends to the health institution as follows:

• to enable the parents (guardians/adoptive parents) of a child who is in treatment, to reside in the health institution in the capacity of the child’s companions, under equal terms, without differentiating on the basis of sex or any other personal characteristic.

The health institution shall inform the Commissioner for Protection of Equality on measures undertaken with a view to implementing this recommendation, within 30 days from the date of receipt of the recommendation on measures for achieving equality.

No appeal or any other judicial remedy is admissible against this recommendation on measures for achieving equality, as this recommendation does not decide on rights and obligations of legal entities.

Statement of the Reasons

In the process of handling citizen complaints, the Commissioner for Protection of Equality learned that certain health-care institutions in the Republic of Serbia, when deciding who will be the companion of a child who is in treatment, make decisions based on stereotypes and prejudices on the roles of the father and the mother in a child’s life. For example, the Commissioner for Protection of Equality inspected a decision of a health institution and found out that it stated that the “mother – companion of the child may reside with the child in line with the prescribed epidemiology measures (healthy mother, with evidence of her vaccination status)”. In another case, the Commissioner for Protection of Equality inspected a decision on refunding expenses of mothers-companions, and found out that expenses and terms and conditions for staying in the health-care institution are only prescribed to mothers – companions of patients (aged up to 18), thus is may be concluded that only mothers are allowed to be companions of patients.

The Commissioner would like bring attention to the fact that Article 21 of the Constitution of the Republic of Serbia^[2] prohibits direct or indirect discrimination based on any grounds, particularly race, sex, national affiliation, social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability. Article 15 of the Constitution prescribes equality of women and men and the obligation of the state to develop equal opportunities policy, while Article 65 prescribes equality of parents in their exercise of the rights and duties to support, provide upbringing and education to their children.

The Commissioner for Protection of Equality also notes that the Republic of Serbia ratified the Convention on the Rights of the Child[3] in 1990, which prescribes, in Article 3, paragraphs 2 and 3, that States Parties are obliged to undertake to ensure the child such protection and care as is necessary for the child’s well-being, taking into account the rights and duties of the child’s parents, legal guardians, or otherindividuals legally responsible for the child and, to this end, shall take all appropriate legislative and administrative measures, as well as that they shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well ascompetent supervision. In addition, Article 18, paragraph 1 of the Convention prescribes that States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child, and that the best interests of the child will be their basic concern.

General Comment 7 (Implementing Child Rights in Early Childhood) to the Convention on the Rights of the Child[4], the Committee on the Rights of the Child emphasizes the importance of the fact that small children are holders of all the rights prescribed in the Convention on the Rights of the Child and that early childhood is a key period for the exercise of these rights. It also states that small children may also suffer consequences of discrimination against their parents. In addition, this General Comment emphasizes that both parents have joint responsibility in the child’s care and upbringing, where fathers and mothers are recognized as equal caregivers. The Committee states that in practice family patterns are variable and changing in many regions, as is the availability of informal networks of support for parents, with an overall trend towards greater diversity in family size, parental roles and arrangements for bringing up children.  These trends are especially significant for young children, whose physical, personal and psychological development is best provided for within a small number of consistent, caring relationships.  The Committee acknowledges that each of these relationships can make a distinctive contribution to the fulfilment of children’s rights under the Convention and that a range of family patterns may be consistent with promoting children’s well-being. More generally, during periods of rapid social change, traditional practices may no longer be viable or relevant to present parental circumstances and lifestyles, but without sufficient time having elapsed for new practices to be assimilated and new parental competencies understood and valued.

The Republic of Serbia has also ratified the Convention on the Elimination of All Forms of Discrimination against Women[5], which proclaims in Article 16 equality in the exercise of the human rights of women and men within a family, and, inter alia, provides for equal parental rights and obligations in respect of the children. In all cases, the interests of the children shall be paramount[6]. By ratifying this Convention, Serbia has, inter alia, undertaken to take all appropriate measures in particular with a view to change social and cultural customs in respect of the behaviour of men and women for the purpose of eliminating prejudice as well as common and any other practices based on views about the inferiority or superiority of either sex or the traditional roles of men or women. The Beijing Declaration and Platform for Action^[7] states that health services and workers shall conform to human rights and to ethical, professional and gender-sensitive standards, and that one of the measures for the fulfilment of this objective is encouraging men to share equally in child care and household work and to provide their share of financial support for their families.^[8]

European Convention for the Protection of Human Rights and Fundamental Freedoms^[9] prescribes in Article 14 that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or otheropinion, national or social origin, association with a national minority, property, birth or other status.

The constitutional prohibition of discrimination is developed in more detail by the Law on the Prohibition of Discrimination, which defines in Article 2, paragraph 1, point 1, discrimination and discriminatory treatment, as any unwarranted discrimination or unequal treatment, that is to say, omission (exclusion, limitation or preferential treatment) in relation to individuals or groups, as well as members of their families or persons close to them, be it overt or covert, on the grounds of race, skin colour, ancestors, citizenship, national affiliation or ethnic origin, language, religious or political beliefs, sex, gender identity, sexual orientation, financial position, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organisations and other real or presumed personal characteristics. Also, the Law on the Prohibition of Discrimination in Article 20 prohibits conduct contrary to the principle of the equality of the genders; that is to say, the principle of observing the equal rights and freedoms of women and men in the political, economic, cultural and other aspects of public, professional, private and family life, as well as denial of rights or granting privileges, be it publicly or covertly, pertaining to sex or sex change. This article also specifies that it is forbidden to publicly advocate, support and practise conduct in keeping with prejudices, customs and other social models of behaviour based on the idea of gender inferiority or superiority; that is, the stereotyped roles of the genders[10]. Also, Article 22, paragraph 1 stipulates that every child shall have equal rights and protection in the family, society and the state, regardless of their personal characteristics, or those of their parents, guardians or family members.

The Law on Gender Equality^[11] specifies that gender-based discrimination is any unjustified differentiation or unequal treatment or failure to treat (exclusion, restriction or prioritizing) aimed at hindering, jeopardizing, preventing or denying exercising or enjoyment of human rights and freedoms to a person or a group of persons in the area of politics, economy, social, cultural, civil, family life or any other area. Article 2, paragraph 4 of this Law stipulates that the state authorities, the authorities of the autonomous provinces, the authorities of local self-government units, organizations entrusted with the exercise of public powers, as well as the legal entities established or financed in full, or mostly by the Republic of Serbia, the autonomous province and a local self-government unit are obliged to monitor the accomplishment of gender-based equality in all fields of social life, the application of international standards and the rights guaranteed by the Constitution in this field.

The Family Law[12] stipulates that the field of parenting is based on principles relating to the equality of women and men. Article 7, paragraphs 1 and 2 stipulate that the parental right belongs to the mother and father together, and that they are equal in the exercise of parental rights when it concerns parental care, while Article 68, paragraphs 1 and 3 stipulate that parents have the right and duty to take care of the child, but also have the right to receive all information from educational and medical institutions. Article 69, paragraph 1 of this Law prescribes that parents have the right and duty to protect and raise the child by personally taking care of his/her life and health.

Article 26, paragraphs 1 and 2 of the Law on Patients’ Rights^[13] stipulate that a child under the age of 15 years has the right to hospital care accompanied by one of the parents, adoptive parent or guardian, whenever possible, as well as the right to visit to the fullest extent possible, in accordance with their health status and best interests. Article 14 of this Law stipulates that during the stay in a stationary health institution, a patient has the right to receive visitors, in accordance with the house rules of the health institution, as well as the right to prohibit visits to a particular person or persons.

The Commissioner for Protection of Equality finds that in the Republic of Serbia, despite the adopted normative framework that provides the highest level of protection against discrimination and the modern way of regulating the area of gender equality, gender stereotypes are still widespread, which in many areas to a large extent influence the creation of male and female gender roles. One of these areas is the area of parenting in which, due to great influence of certain customs and social patterns of behavior, “models” of the role of mothers and fathers in the life of a child are deeply rooted. Starting from the adopted “models”, women are primarily regarded as caregivers in our society, that is, childcare is the sole task of women. In this way, that “model” is also applied in the practices of some children’s clinics in which fathers may not  accompany their children on treatment, but only mothers may, or female persons may if a child’s mother is not able to accompany.

In this regard, the Commissioner for Protection of Equality indicates that the prescribing of rules that only mothers or female persons may accompany children on treatment in a health institution constitutes treatment based on the idea of subordination or superiority of sexes, or stereotypical gender roles, and constitutes sex-based discrimination, which is explicitly prohibited by the Law.

Bearing in mind the fact that both parents have the rights and duties to participate equally and actively in the upbringing, care and development of a child, it is necessary, in the practical implementation of the legal provision providing for a child under the age of 15 to be entitled to hospital care accompanied by one of the parents, to provide equal treatment to parents (guardians/adoptive parents). Also, when deciding on the right, it is necessary to ensure that each individual decision is based on objective criteria rather than on discriminatory practice. Pursuant to the above, the Commissioner for Protection of Equality considers that all social actors should provide support and undertake measures within their competences in order to fully achieve the principles of gender equality.

The Commissioner particularly indicates that health care institutions have a special responsibility in society and reminds of the duty of full respect for international and national regulations in order to achieve full equality in all areas of social life, and the importance of respecting the principle of equality of parents in parental rights and duties, regardless of their personal characteristics.

Bearing in mind the above, the Commissioner for Protection of Equality, in accordance with Article 33, point 9 of the Law on the Prohibition of Discrimination, referred this recommendation for measures for achieving equality to health care institutions for children in which children are on treatment or rehabilitation. In the event that a decision is in force which restricts or prevents the parents (guardians/adoptive parents) of the children who are treated in the health institution to accompany them under equal conditions, without discrimination in relation to gender or any other personal characteristics, the Commissioner for Protection of Equality points out that such act needs to be amended, or harmonized with anti-discrimination legislation. Also, if, despite the existence of a decision complied with anti-discrimination regulations, in practice discrimination is made in relation to sex or any other personal characteristics, such healthcare institution is obliged to take measures to eliminate these irregularities. The health institution shall inform the Commissioner for Protection of Equality of the measures taken in order to implement this recommendation within 30 days from the date of receipt of the recommendation for measures for achieving equality.

[1] Law on the Prohibition of Discrimination (“Official Gazette of the RS”, no 22/09), Article 33, point  9

[2]  The Constitution of the Republic of Serbia (”Official Gazette of the RS”, No 98/06)

[3]  Law on the Ratification of the Convention on the Rights of the Child (”Official Gazette of SFRY – International treaties”, No 15/90 and ”Official Journal of FRY – International treaties”, No 4/96 and 2/97)

[4]  UN, General Comment 7: Implementing Child Rights in Early Childhood, CRC/C/GC/7/Rev. 1, 20 September 2006.

[5] Law on the Ratification of the Convention on the Elimination of All Forms of Discrimination against Women (”Official Gazette of SFRY – International treaties”, No 11/81)

[6]  Law on the Ratification of the Convention on the Elimination of All Forms of Discrimination against Women, Article 16, paragraph 1, point e)

[7]  Adopted at the Fourth World Conference on Women in 1995.

[8]  Strategic Objective B. 1 of the Platform for Action.

[9]  “Official Journal of Serbia and Montenegro – International Treaties”, No 9/03, 5/05 and 7/05 – corr. and “Official Journal of the RS – International Treaties”, No 12/10

[10] Law on the Prohibition of Discrimination, Article 20.

[11] Official Gazette of RS, No. 104/09

[12] Official Gazette of RS, No.. 18/05, 72/11 – other law and 6/15

[13] Official Gazette of RS, No. 45/13