Saturday, September 25

A judge establishes that the fetus who died in childbirth counts for the maternity supplement of the pension

A judge in Barcelona has applied the gender perspective to agree with a woman who was denied by Social Security to count her child who died in childbirth to calculate the maternity supplement to her retirement pension. The magistrate Domingo Andrés Sánchez sentences that the deceased fetus after a cesarean section is counted in the maternity supplement, which will go from 5% to 10% since it is considered the third descendant of the woman.

In a sentence, the judge agrees with the defense of the retired woman, exercised by the Collectiu Ronda, and rejects the “purely mercantilist perspective as if they were manufacturing human productive units” which, in his opinion, would mean not recognizing the fetus died in childbirth as the son of the pensioner. The objective of the maternity allowance, adds the magistrate, is to promote “positive discrimination to compensate women due to what pregnancy entails, compensating for their losses and balancing the so-called wage gap”, which is why the newborn should also be included passed away.

The maternity pension supplement, currently replaced by the new maternity and paternity supplement after the European Justice considered it discriminatory with respect to men, established a percentage of increase in the amount of the pension based on the number of children and daughters, whether biological or adopted: 5% in the case of two sons; 10% if you had three descendants and up to a maximum of 15% if you had four children.

In the case of this woman from Barcelona, ​​Social Security had granted her a supplement of 5%, but she was claiming 10% taking into account her son who died in childbirth. The Social Security had rejected it administratively, but now the head of the social court 25 of Barcelona has agreed. The judge amply cites in his sentence the particular vote of the magistrate of the Supreme Court of the Canary Islands Gloria Poyatos, who, unlike the rest of the Social Security Chamber, did not endorse the restrictive criterion of Social Security in an identical case.

Social Security alleged that the deceased child had done so just at the time of delivery and not after the first 24 hours of life, which according to the Civil Code in force at the time of death did not grant legal personality to the fetus. On the other hand, the judge points out that there is no justification to include in the count of children a newborn who has lived two days and not to do the same with the dead fetus at the time of birth. The sentence can be appealed before the Superior Court of Justice of Catalonia (TSJC).

For the lawyer Jaqui Gaspar, from the Col·lectiu Ronda, the sentence is “valuable and transcendent” because it interprets the regulations “as an element of protection and compensation against the obvious damages” that the biological process of gestation and the subsequent need for physical recovery cause. in women, as well as their “preponderant” weight in upbringing.



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