Equality disagrees with Social Security and defends paternity leave when the baby dies at the end of pregnancy

There were a few days left for Noelia to get out of accounts. "But she noticed something strange, Valeria didn't move that much, so we went to the hospital," explains Antonio, her partner and the baby's father. After monitors and an ultrasound, the toilets 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 the maternity leave to the biological mother, but not to the other parent. The Ministry of Equality rejects the procedure of Social Security and defends that both parents have this right, responds to queries from elDiario.es.

The accumulation of maternity and paternity leave for single mothers begins to break through

"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 he succeeded his daughter Valeria. "It happens more than we think and in Spain nobody talks about it," he highlights. The administrative process after the childbirth of the already deceased girl has also surprised the couple, who denounce the "additional suffering" caused by the bureaucracy that parents face in these circumstances.

"The first thing is that in the death papers you cannot put the name of the baby. My daughter was called 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 denial of paternity leave, which we did not expect. The doctors and lawyers we consulted told us that they thought he was entitled," continues Antonio.

In cases of death of the baby late in pregnancy and before childbirth, after 180 days of gestation, Social Security grants maternity leave to the biological mother. But it rejects requests for birth permits to the other parent, as an official from the agency informed Antonio and confirmed to elDiario.es at the Ministry of Social Security, led by José Luis Escrivá.

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 subsidy may not be recognized if the child or the 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 minor dies. welcomed".

"I think it's very unfair. Aren't we parents? What are we? I'm the father of a deceased girl," says Antonio with a broken voice. The couple considers that the criterion is unfair in a context of equal birth permits. Also, remember that if Valeria had only lived 24 hours, Antonio would have been entitled to paternity leave. "It doesn't make much sense," he considers.

Change of legislation 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 by 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 the Ministry of Equality points out, 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 mandatory rest have ended, the suspension is requested. 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.

One thing to note is that, on the Social Security portal itself, information is given about the right to permission of these parents other than the biological mother, citing the wording of the legislation since 2019.

The Umamanita association, which supports perinatal and neonatal death, denounces on its 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.

In April of last year, in the midst of a pandemic, the General Directorate for Social Security Regulation issued a management criterion −to which this medium has had access− in which it maintains that the new wording of the 2019 law causes " question" whether the other parent is also entitled to birth leave in the same way as the biological mother. The body decides no, thus establishing the criteria for its offices, since it concludes that the 2009 regulation that states that these parents do not have the right to permission has not "lost its virtuality."

Decisions in favor of permits

Robert Gutiérrez, an expert jurist 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 just this one," he recalls.

"The key is that the current legislation establishes a single permit of 16 weeks 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, which recalls that even before the legislative changes of 2019, 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 judgments consulted by this means. The TSJ of Asturias in 2018, in a case of a girl who died in childbirth; the one in Euskadi, also in 2018, which recognized the right to the father of a child who died in the 37th week of gestation, and the one in Castilla-La Mancha, in 2019, which did the same with respect to the parent of a girl who died after 37th week of pregnancy. The magistrates consider birth leave beyond a measure of child care and recall that it is an element in favor of equality and family reconciliation.

On the other hand, another court, the TSJ of Aragón, denied permission in 2019 to another father whose girl died after 39 weeks of gestation. The sentence, which links the leave to the care of the descendant and highlights the special (and differentiated) protection of maternity, is prior to the legislative change that equalized the leaves that year.

Social Security adheres in its criteria to that idea of ​​"the different purposes provided for the provision of birth and child care for the biological mother and for the other parent", limiting the purpose of paternity leave to "care of the child" .

In the department directed by Irene Montero they differ. "From the Ministry of Equality we understand care in a broad way and for this reason it makes every sense that the other parent enjoys the permit. In this case there is no care for the son or daughter, but there is for the mother who has carried out 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 maintain.