The Supreme Court denies paternity leave when the baby dies before delivery

The Supreme Court has issued a ruling denying paternity leave in a case in which the baby died a few days before delivery. The judges of the social chamber, with a magistrate against, understand that this provision is designed to distribute the care of the newborn and that in cases like this "unfortunately there is no longer a need for the parent other than the biological mother co-responsible for the care of the descendant". The Supreme thus agrees with Social Security against the criteria of various courts and tribunals throughout the country as well as that of the Ministry of Equality.

The judges of the social chamber met in plenary session to study a revealed case by elDiario.es: That of a couple from Aragon whose daughter died a few days before giving birth in 2018 after more than 39 weeks of pregnancy. Social Security did recognize women's maternity leave but refused to recognize men's. A decision that was ratified first by a court in Teruel and in second instance by the Superior Court of Justice of Aragon.

The judges, who brought the case fully due to the importance of the matter, understand that the primary purposes of these permits are different: "In the case of suspension and maternity benefit, it is about recovering and protecting the health of the biological mother, while in the case of the parent other than her, it is about promoting their co-responsibility in the care of the child", she explains. That is why he supports that the law does not grant the same treatment to both, not even in this "painful trance".

If, as in this case, the baby dies before the match, according to the Supreme Court, "there continues to be" the need to "recover and protect the health of the biological mother", but not that of caring for the newborn, which, according to the judges , "unfortunately ceases to exist, unfortunately" in cases like this.

The judges do not close the door to the fact that, in any case, a future legal change could change this situation. "Another thing is that the legislator can establish that, in these extremely unfortunate cases, the suspension of the contract and birth benefit in favor of the parent other than the biological mother are also possible," he explains. "Nothing prevents, as we have been saying, that the legislator can also recognize the suspension and the benefit to the parent other than the biological mother under conditions similar to those that are recognized to the latter, without the fact that it does not convert the regulation in violation of the aforementioned constitutional right", ditch.

The Supreme reaches this conclusion by studying a resolution of the Constitutional Court of 2018. The case of a man who in 2016 requested an extension of his paternity leave that was denied by Social Security and also, ultimately, by the court of guarantees although without unanimity of the plenary magistrates. That Constitutional ruling assured that the longer duration of maternity leave compared to paternity leave "is not discriminatory for men."

The decision has not been unanimous, and that is what has led the affected party to decide that he will take the case to the Constitutional Court. One of the magistrates of the plenary of the social, Rosa Virolés, has added a dissenting vote of six pages in which she bets on giving reason to the appellant and recognizing paternity leave: "Depriving the plaintiff of the benefit, I consider that it violates the principle of equality and is discriminatory against men", says this magistrate.

Virolés understands that this case does not only affect the right to equality recognized in article 14 of the Constitution, but also the reconciliation of family and work life and even private life. And from this point of view he understands that "there is no reason to be" to deny this benefit to the other parent once the mother has been recognized.

For this magistrate, a member of the Supreme Court for more than 15 years, this does not change because the girl died before delivery. "Without this precluding that, given the unfortunate circumstances of the case, the daughter was born deceased, since the same circumstances continue to occur in both the mother and the father in this second phase to which I have referred before," he explains in his private vote.

These arguments will serve to take the fight to the Constitutional Court in an amparo appeal by the man who has promoted this lawsuit. Meanwhile, this sentence endorses the Social Security criterion of denying paternity leave in this type of case, which, until now, had not received a unanimous response from the courts.

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