The Social Chamber of the Superior Court of Justice of the Canary Islands (TSJC) has asked the Court of Justice of the EU whether the maternity supplement for women's retirement pensions constitutes discrimination for those men who can prove that they have assumed the take care of your children.
The doubts raised by the Canarian court occur after the lawsuit filed by a widower with four children to which the Social Security refused his request to be applied to the retirement pension 15 percent as a maternity supplement.
The court of social number 1 of Las Palmas rejected the claim again and the plaintiff filed an appeal in which he alleges discrimination based on sex when he can not access the bonus.
In its response to the man's claim, the National Institute of Social Security (INSS) indicated that the claimed supplement only contemplates its application for women who have had children and are beneficiaries in any Social Security scheme of contributory retirement pensions, widowhood and permanent disability.
The order of the Social Chamber of the TSJC recalls the European directive that guarantees equal treatment in the access to employment between men and women, and alludes to the state regulations to ensure the absence of any discrimination between sexes and especially those derived from maternity.
It adds that in the strict application of the regulatory rule of the maternity supplement regulated in the General Law of Social Security, its application is limited exclusively to women "because of its demographic contribution to Social Security" and asserts that in the general requirements for access to the supplement, male pensioners are excluded.
The norm aims to compensate, by way of positive action, the contribution to the demography made by women through motherhood "and the effort associated with such maternity, thus softening the historical discriminations that have recorded more intensely women than men and have have been generating the gender gap in pensions, "he adds.
But the court also raises doubts about the exclusion of parents in raising children which, in his view, could encourage "the segregation of gender roles."
In this regard, the article analyzes European jurisprudence that defends positive actions in favor of women during pregnancy and after pregnancy, as well as the protection "of the particular relationship between women and their children".
The order indicates that, nevertheless, the Spanish maternity supplement is not linked to motherhood but to the raising of children and the practice of caring, as it is a factor that affects the career and salary income of women, and requires that the act of caring can be performed by both women and men.
"Socially promoting the involvement of parents in the upbringing of children is an advance towards co-responsibility and therefore real equality between men and women," says the Court.
The doubt of this Chamber is that if this exclusion of parents to the maternity supplement can be considered a difference in treatment on the grounds of unjustified and discriminatory sex in certain exceptional situations, as in the case of widowed parents.