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The battle for paternity leave for babies who die before birth is headed back to the Supreme Court

The legal battle continues over the permissions of parents of babies who die in late pregnancy and childbirth. Social security only recognizes the right of the biological mother, which has led several parents and at least one mother to request permission in court, according to cases found on, ruling for and against your request. It appeared that the Supreme Court had ended the debate in the summer by refusing to recognize the rights of an Aragonese parent whose daughter died in 2018, but a new ruling has reopened the issue and the issue will return again. Supreme Court.

The High Court of Justice of Catalonia (TSJ) in a decision on October 17 recognized the permission of the father, as reported by El Periódico, whose baby died at 36 weeks “after the mother had a caesarean section on March 23. 2021″. The magistrates, with Macarena Martinez as the Miranda reporter, believe that the Supreme Court’s jurisprudence in this case is “inapplicable” and that what is relevant is the reason.

In the summer, the Supreme Court upheld a Social Security measure that recognizes only surrogate mother’s permission, arguing that in this case she is performing a pregnancy and childbirth recovery function. Because the child does not survive, Social Security considers that the minor is not being cared for by the other parent and does not recognize their permission. The Supreme Court found that the differential treatment between parents was justified, arguing that permission serves a specific function in the case of a surrogate mother.

The judges of the Catalan TSJ argue in the judgment that the opinion of the Supreme Court, which had a private vote against the magistrate and which the father appealed to the Constitutional Court, refers to the events that happened in 2018, when there was not even an equalization of the birth permits of both parents. The government approved the measure in 2019, which saw permits extended to 16 weeks for both parents from January 2021.

The TSJ of Catalonia concludes that the criterion of the Supreme Court, which guarantees that only the consent of the mother is recognized, is not applicable in the “new regulatory context”. That is, according to the currently valid legislation, permits are equal to 16 weeks. Accordingly, its interpretation will limit the High Court’s jurisprudence to only cases involving fathers and mothers until 2019.

Magistrates argue that the change to the law, which equalized the two-parent permits, only treats the first six weeks differently. The workers’ charter states that this must be accepted by both parents, and specifically mentions “mother’s health protection” and “caring duties” in the case of the other parent.

However, the TSJ notes that the leave granted to mothers in these cases is not limited to six weeks of recuperation, but full leave is recognized. After these six weeks, the judges consider the function of permission between the parents to be comparable and do not consider it justifiable to recognize only the mother.

For this reason, the magistrates reiterated their doctrine of the previous case (2021). “Permissions, although they have different elements (such as the biological fact of pregnancy and childbirth), also have other things in common, because one of the goals of both is co-responsibility in taking care of family needs, reconciling work and work. Family life, which includes not only taking care of the newborn child, but also taking care of the couple, adapting to the new family situation, which in the case of a deceased son or daughter involves a period of mourning, which affects both. Mother and father, therefore, it does not make sense that in this case maternity allowance is given and not paternity allowance”, they explain.

Sources of the Ministry of Social Protection confirm the appeal of this new ruling, “because the Supreme Court has already made a decision on the disputed issue”. Therefore, the Supreme Court will face the issue again.

The magistrates of the Catalan TSJ also believe that European jurisprudence and the Equal Treatment Directive that Spain adopted in 2022 also support their interpretation of the equalization of permits in this case, as Spain has already advanced in this measure in favor of reconciliation and equality. Labor Market.

“The doctrine of the European Court of Human Rights considered that the principle of equality is violated in the case of denying the enjoyment of conciliatory rights to men due to the convergence of stereotypical concepts,” recalls the Catalan TSJ.

Miguel Ángel Gorbe, the father who was denied permission by the Supreme Court, is still waiting for his appeal to the Constitutional Court to be allowed. According to him as a lawyer, “the violation of the right to equality in Article 14 of the Constitution is the most common thesis, both by the courts and the courts, as it is provided in the sentence. Parents or other parent also have. “The right of family co-responsibility, which extends to our health and taking care of the family equally with the mother,” he believes.

Source: El Diario





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