There were a few days left for Noelia to come out of accounts. “But he noticed something strange, Valeria didn’t move that much, so we went to the hospital,” explains Antonio, her partner and father of the baby. Past monitors and an ultrasound, the health workers informed them that Valeria had died. Immersed in pain, the couple denounces to this medium one of the trances they face: Social Security recognizes in these cases maternity leave for the biological mother, but not for the other parent. The Ministry of Equality rejects the procedure of Social Security and defends that both parents have this right, responds to inquiries from elDiario.es.
The accumulation of maternity and paternity leave for single mothers begins to make its way
“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 explain to this medium from the ministry led by Irene Montero.
Antonio had hardly heard anything about perinatal deaths. Until it happened to his daughter Valeria. “It happens more than we believe and in Spain nobody talks about it,” he highlights. The administrative process after the birth of the deceased girl has also surprised the couple, who denounces the “additional suffering” caused by the bureaucracy that parents face in these circumstances.
“The first thing is that you can’t put the baby’s name on the death papers. My daughter’s name was Valeria, but you have to put the mother’s ‘fetus’. In our case, ‘Noelia’s fetus’. It may seem silly, but It is not. And then there is the rejection of paternity leave, which we did not expect. The doctors and lawyers we consulted told us that they thought he had the right, “continues Antonio.
In cases of death of the baby late in pregnancy and before delivery, after 180 days of gestation, Social Security grants maternity leave to the biological mother. But he rejects applications for birth permits to the other parent, as reported by an official of the agency to Antonio and confirmed to elDiario.es in the Ministry of Social Security, led by José Luis Escrivá.
The Social Security bases its refusal on a royal decree of 2009, which develops the regulation of maternity and paternity benefits, as they were called before. In this, it is stated that “the paternity allowance may not be recognized if the child or minor in foster care dies before the start of the suspension or leave. However, once the subsidy is recognized, it will not be extinguished even if the child or minor dies. welcomed “.
“It seems very unfair to me. We are not parents? What are we? I am the father of a deceased girl,” says Antonio with a broken voice. The couple considers that the criterion is unfair in a context of equality of birth permits. Also, remember that if Valeria had lived only 24 hours, Antonio would have been entitled to paternity leave. “It doesn’t make a lot of sense,” he considers.
Legislation change in 2019
Social Security maintains its denial policy based on the aforementioned 2009 decree, but 2019 was a turning point. The Government of Pedro Sánchez equalized the birth permits of both parents, progressively extending the period of absence from work recognized for paternity to 16 weeks.
The modification of the Workers’ Statute not only equated the times of the permits, but also included other assimilations between the parents. As pointed out by the Ministry of Equality, it was specified in article 48.4 that “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 compulsory rest have ended, the return to work “. In the previous wording, the Statute contemplated this situation only in the article that developed maternity leave (which was separate from paternity leave) and specifically mentioned “the mother” in the phrase.
A fact to highlight is that, in the portal of the Social Security itself, it is reported on the right to permission of these parents other than the biological mother, citing the wording of the legislation since 2019.
The Umamanita association, of support for perinatal and neonatal death, report on your website that after the change in legislation two years ago, Social Security granted paternity leave in these situations, but in 2020 it changed its position again.
The General Directorate for the Organization of Social Security issued in April of last year, in the midst of the pandemic, a management criterion – to which this media has had access – in which it maintains that the new wording of the 2019 law causes that ” question “if the other parent is also entitled to birth leave like the biological mother. The organism decides that no, thus establishing the criteria for their offices, since it concludes that the 2009 regulation that states that these parents do not have the right to permission has not “lost their virtuality”.
Judgments in favor of permits
Robert Gutiérrez, a legal expert in labor law, agrees with the Equality criterion. “The Workers’ Statute prevails over that 2009 regulation. The INSS is usually very restrictive in granting benefits, not only this one,” he recalls.
“The key is that current legislation establishes a single 16-week permit for both parents and recognizes the permit in the event of the death of the child. It is the regulation that must be applied, so in my opinion it should be recognized,” explains Gutiérrez, recalling that even before the 2019 legislative changes, several higher courts of justice (TSJ) recognized parental leave in these cases, against the criteria of the INSS (National Institute of Social Security).
There are at least three courts according to the sentences consulted by this means. The Supreme Court of Asturias in 2018, in a case of a girl who died in childbirth; that of Euskadi, also in 2018, which recognized the right of the father of a child who died in week 37 of gestation, and that of Castilla-La Mancha, in 2019, which did the same with regard to the father of a girl who died after the week 37 of pregnancy. The magistrates consider the birth permit beyond a measure of care for the minor and recall that it is an element in favor of equality and the reconciliation of the family.
On the other hand, another court, the Supreme Court of Aragon, denied permission in 2019 to another father whose child died after the 39th week of gestation. The ruling, which links the leave to the care of the descendant and highlights the special (and differentiated) protection of maternity, predates the legislative change that that year equalized the leave.
Social Security adheres in its criteria to that idea of ”the different purposes foreseen for the provision of childbirth and childcare for the biological mother and for the other parent”, limiting the purpose of paternity leave to “child care” .
In the department directed by Irene Montero they differ. “From the Ministry of Equality we understand care in a broad way and for that reason it makes perfect sense for the other parent to have permission. In this case there is no care for the son or daughter, but there is for the mother who has completed a pregnancy despite its outcome, with what this implies physically and emotionally for her, without ignoring the consequences that it also has for the other parent “, they argue.