The pregnancy had come to term. Sheila Castilla and Carmen Soto were looking forward to the countdown to the birth of Vera, her first daughter. They had married to carry out the so-called 'ROPA method': Sheila laid the egg and Carmen gestated the baby, so that both were mothers of the girl "with the same rights", they explain. But after the 40th week of pregnancy, Vera stopped moving. "That's where the ordeal began," says Sheila. At the hospital they were informed that the girl had died. The couple faced the pain of loss, but also the bureaucracy surrounding to perinatal deaths and that they did not know. The mothers have started a battle against one of these procedures: the refusal of Social Security to grant maternity leave to one of them.
When a baby dies in the final stretch of pregnancy, before delivery and after six months of gestation, Social Security recognizes the birth leave – previously called maternity and paternity leave – only for "the biological mother", but not the other parent.
This is how the public body notified Sheila by denying her permission for Vera's birth. Carmen, who gave birth to the deceased baby on February 2, has been recognized this right. "It's very unfair. We are both her mothers, why do I have that right and she doesn't? Our daughter was born after week 40, only she was born dead," says Carmen with her partner, whom she encouraged to report to Social Security as other families have successfully done. The last one, with favorable sentence for a father known last February.
The legal battle of several families in the same situation for Social Security to recognize the permission of the two parents came to them through the Matrioskas association, which helps perinatal mourning and is based in Andalusia. "There is a lot of ignorance about this issue, they informed us and welcomed us with groups of mothers who have gone through this," explains Sheila.
"This is a process in which you are in shock. I had just seen my daughter, she had only spent ten minutes away from her mother and they were already asking me to fill out papers, etc. We did not know anything, nor did we expect this because the pregnancy had gone without any problem, not a bleed or anything," adds Sheila.
The Social Security criterion when excluding these parents from birth leave is controversial, especially as a result of the 2019 legal change to equalize birth permits between the two parents at 16 weeks. The Ministry of Equality, directed by Irene Montero, disagrees with the actions of Social Security and defends that the legal modification affected this alleged death of the baby.
"The Workers' Statute included in 2019, with the extension of paternity leave, that in the event that the baby died, the other parent had the right to enjoy that leave," they explained in Equality to elDiario.es last August.
The situation was expressly included in article 48.4 of the Workers' Statute: "In the event of the death of the son or daughter, the period of suspension will not be reduced, unless, once the six weeks of mandatory rest have ended, a request is made for return to work". In the previous wording, the Statute contemplated this situation only with regard to maternity leave (which was separate from paternity leave) and specifically mentioned "the mother" in the phrase.
Despite this change, Social Security continues to argue the denial of permission to these parents by a 2009 decree, which develops the regulation of maternity and paternity benefits. This states that "the paternity subsidy may not be recognized if the child or foster minor dies before the start of the suspension or permit. However, once the subsidy has been recognized, it will not be extinguished even if the child or foster minor dies." The logic of the refusal is that the permit in these cases has the function of recovering the surrogate mother and that, since the baby is not alive, the other parent does not have the right to the permit, which is limited to the care of the minor.
The TSJ of Cantabria dismantles this argument in a recent sentence, in the one that recognizes the permit to a father whose baby died in the 39th week of gestation. The magistrate recalls that the Workers' Statute has a higher hierarchical rank than a royal decree, so this must be applied, which recognizes the right for both parents in an undifferentiated manner. The sentence prevails the egalitarian spirit of the permits "in the assumption of family responsibilities and obligations."
But, even before the legal changes of 2019, several Superior Courts of Justice (TSJ) of Autonomous Communities recognized the right to complaining parents: the TSJ of Asturias, in 2018; the Basque Country, also in 2018; and that of Castilla-La Mancha, in 2019. The magistrates then considered the birth permit beyond a measure of child care and also recalled that it is an element in favor of equality and conciliation in the family.
Sheila, hand in hand with her partner, has embarked on the same path as these families to demand the right to permission through the courts. "The least you want to do is complain and file a complaint. Psychologically you're in a very bad way. I've had to go to Social Security many times to file a claim and every time you go you have to explain what happened... It's a very bad time" Sheila says. "But I do it to make things better, for my daughter and for the boys and girls who come, to fight for them and to be recognized as sons," she adds.
The couple is also looking closely at the court case of Miguel Ángel Gorbe, a lawyer by profession and father of a girl who died in the final stretch of pregnancy. It is the only one in which a TSJ –the one from Aragón– has rejected the permit request. Gorbe has filed an appeal that will be analyzed by the Supreme Court.
Both Gorbe and Carmen and Sheila are pending the High Court and a possible ruling in favor of permission for both parents. That decision would finally cause a change in the criteria of Social Security so that families do not have to go through this process of individual claims and complaints.
"They said that the equalization of permits was going to guarantee equality in families. Where is equality here? It is not true. If in practice it is not carried out, you change the law, but equality remains only in the name", laments Carmen.