The Supreme Court has rejected that in a single-parent family the mother can add to the leave for birth and care of the minor to which she is entitled, the one that would have corresponded to the other parent, a ruling that marks doctrine given the disparity of previous judicial decisions.
In a resolution made public this Wednesday, the Supreme Court responds to an appeal filed by the Prosecutor’s Office, after the Basque Superior Court of Justice condemned Social Security and recognized a single mother’s right to eight additional weeks of leave.
The high court upholds the appeal, understanding that the legislator is exclusively responsible for the Social Security benefits system and also recalls that, when recently reforming the abortion law, an amendment that was rejected in the Senate “by an overwhelming majority” He was looking precisely for single mothers to be able to accumulate both permits.
For the magistrates, confirming the appealed sentence would mean creating a new contributory benefit in favor of the parents of single-parent families and would harm employers, forced to endure a longer duration of the contractual suspension expressly provided for in the law.
“An intervention of such a caliber is far from what the constitutional organization of the State entrusts to judges and courts. Their function is the application and interpretation of the norm, but not the creation of the law,” they allege.
According to the ruling, neither European regulations nor any international treaty ratified by Spain obliges recognition of this right and the current regulation of permits is not contrary to the principle of equality included in the Constitution.
The magistrates defend their work by applying the gender perspective, but insist that in this case there is no discrimination, “but rather a possible deficit of specific protection desired and consented to by the legislator.”
Judge Ignacio García-Perrote signs a dissenting opinion with the majority, considering that the interest of the minor is “a mandatory primary consideration” and in which he also claims the application of the law with a gender perspective, as the Supreme Court has done in other resolutions.
“The person affected is a woman, the biological mother, and it is clear that she is the only parent. The sentence -majority vote- does not contain any justification or reasoning for why in the present case it departs from the doctrine established by our own court,” he laments.
Until now, numerous courts had recognized the right of mothers of single-parent families to enjoy a second permit, but there were also dissenting magistrates. The Supreme Court puts an end to the debate with this resolution.
In Spain there are almost two million households with a single parent with children and more than 80% of them are headed by women.
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