The TSJA ratifies the extension of maternity leave time to a single-parent family in Teruel

This has been decided by the Superior Court of Justice of Aragon (TSJA), which has dismissed the appeal filed by the INSS against maternity leave, on the grounds that the purpose of maternity leave and child care is Precisely, granting the parents the possibility of fully caring for the minor during their first weeks of life, and that time of caring for the minor cannot be harmed or diminished by the fact of being a single-parent family.

"It is not fair that a newborn with two parents has more rights than another with a single parent," said Marta L.R., mother of the minor, who has shown her "satisfaction" with the sentence, despite the fact that, in her case, "he's a little late" because he had to go to work on September 14. "It would have been better if the two periods of absence were followed, one after the other, without interruption," she added.

"The child benefits"

Even so, he stressed, at this time the extension of maternity leave is going "very well" because that way he will be able to devote more attention to his little one, who already has nine months. "I think that, with this decision of justice, the one who benefits is the minor, who can thus enjoy more maternal care for a longer time," said the mother.

"The truth is that I expected the sentence to be favourable, due to other similar cases that have gone to trial in other parts of Spain", Marta continued.

"The sentence that the TSJA has just ratified represents a social advance that is not yet included in the law, but that will end up acquiring the status of workers' rights," said Verónica Gámez Gairín, a UGT lawyer who has represented Marta L.R. in the proceedings.

"It creates jurisprudence", says the mother's lawyer

"This resolution, which joins another similar one issued by the High Court of the Basque Country, protects the interest of the minor and creates jurisprudence at national", added the lawyer. "In this way, the minor will be able to enjoy 32 weeks of maternal or paternal care, depending on the case, which is for his benefit and ends with unequal treatment with respect to two-parent families," said Verónica Gámez. .

In the ruling, the Labor Chamber of the Superior Court of Justice of Aragon denies the appeal filed by the National Institute of Social Security against the ruling handed down by the Teruel Labor Court that agreed to extend the permit to maternity to a woman for being a single-parent family.

The plaintiff worker requested that, being a single-parent family, she be recognized as entitled to the benefit (for the birth and care of her child) of an additional 16 weeks that would have corresponded to the other parent, and secondarily, that she be recognized 10 weeks.

The INSS argued in its appeal that it was not appropriate to recognize the requested benefit because the paternity benefit is individual to the worker, and its exercise cannot be transferred to another parent. Based on Spanish jurisprudence, the Constitution and various international treaties relating to fundamental rights, and the provisions of the Convention on the Rights of the Child, the magistrates of the Chamber understand that, respecting the principle of non-discrimination, to deny the plaintiff the provision, in the terms requested, supposes a violation of the right to equality enshrined in the Convention on the Rights of the Child, "since the attention, care and development of the minor affected will suffer a clear reduction with respect to those others who in a similar situation, framed within a two-parent family model, are going to receive”.

Fundamentals of law

Therefore, the magistrates reject that this discrimination of minors should occur based on the marital status or situation of their parent, and reason that "when we introduce a period of care and attention For the group of single-parent sons or daughters, we are not only reducing the attention that is provided in two-parent families, but we are also introducing a bias that disrupts the child's development, by being cared for for less time and with less personal involvement of the person who has been considered parent.

They also argue that there is also discrimination with respect to women and the foundations of reconciliation of family life and point out in their sentence different "reasons that we have appreciated that could be in violation of the Constitution, and based on them the possible raising a question of unconstitutionality”. They also affirm that "The family situation has been considered as an important referential element of the state of the gender, and specifically determines the situation of women in order to their expectations and labor realities, attributing to the traditional nuclear model a possible manifestation of the situation of inequality of the woman".

They add that there is no justification for single-parent households to receive unequal treatment, which “causes a possible breach of the principle of equality” (art. 14 EC)”. Nor do they see any reason why this extension of maternity leave should not be granted since, in this case, there is no parent who is left without enjoying the leave requested by the plaintiff and because ultimately what the plaintiff wants "favors the reconciliation of the personal, family and work life and, above all, inequality is avoided between minors from two-parent families, who can be in the care of their family for 26 weeks, compared to the 16 weeks that would occur only in the case of single-parent families” for this reason They conclude that "taking into account the best interest of the minor, this inequality of treatment must be prevented."

For all these reasons, they dismiss the appeal filed by the INSS and confirm the sentence of October 6, 2021 of the Sole Social Court of Teruel, in proceedings number 302/2021 followed at the request of Mrs. Marta L. R. Against this resolution of The Social Chamber of the TSJA may present, within ten days from the notification of this ruling, an appeal before the Supreme Court for doctrine unification.