None of the laws in force that regulate childcare leaves allow the transfer of maternity or paternity leave from one parent to another. The general rule is the prohibition, with only one exception: in the event of the death of the biological mother, the other parent can enjoy the leave that would have corresponded to her.
This discrimination denounced by single-parent families has been recognized by the Permanent Commission of the General Council of the Judiciary (CGPJ), by endorsing the request of a magistrate, biological mother and sole parent, to add the weeks of leave that would have corresponded to a father to those of maternity and that today only each of the parents in two-parent families is recognized separately.
Recognition of the rights of single-parent families
The governing body of judges considers that judges who are the sole legal parent in single-parent families can cumulatively enjoy birth permits. It has made this decision in response to a query sent by the Superior Court of Justice of Catalonia in relation to a request made by this magistrate. The woman alleges that in this way single-parent families would be equated with two-parent families in the exercise of the right to reconcile personal, family and professional life.
The CGPJ understands that the Civil Code allows the “analogical application of the norms” when, in the absence of regulation of a certain case, the provisions for another similar one with which identity of reason is appreciated is applied. It explains that in the interest of the minor there is the exception provided by law to transfer permission to the other parent if the biological mother dies , so as “not to limit the total time that the two parents could have spent with the minor enjoying each of them, of consecutively, of their respective permissions “.
Similarly, in the case of this single mother, the best interests of the minor cannot be affected or limited by the fact that they belong to a single-parent family and have only one legal parent.
The CGPJ adds that, “in accordance with the Constitution and international treaties, this option is applicable to cases like this to protect the best interests of the minor.” It points out that this is an exception applicable in an extraordinary way to the case of the magistrate, but recalls that other similar cases would be covered by the constitutional mandate (art. 10.2 CE) according to which, with the combination of the Universal Declaration of Human Rights and the treaties and international agreements to which Spain is a party, which in turn, together with the Convention on the Rights of the Child, would ensure the best interests of the minor in a mandatory way regardless of the condition of their parents.
But it is not the only case of recognition of the enjoyment of both benefits by a parent. Just a few months ago, the Superior Court of Justice of the Basque Country (TSJPV) recognized, in a pioneering ruling, the right of a worker who, being a mother, formed a single-parent family to enjoy 24 weeks of leave for the birth and childcare add to the 16 weeks of maternity leave the additional eight weeks regulated as leave for the other parent.
Without a doubt, an important advance towards equal rights for different types of family, all of which are valid.
Via | General Council of the Judiciary
In Babies and More | How to face conciliation problems in our ‘new’ normality: we spoke with José Luis Casero, president of ARHOE, Single-parent families get two weeks of extra leave in the event of the birth of a child with a disability or multiple birth, How to delay the return to I work as much as possible after maternity leave, to spend more time with the baby
