When a baby dies at the end of pregnancy, Social Security recognizes the birth leave to the biological mother, but not to the other parent. The Ministry of Equality disagrees with the criteria of the agency and defends that the right exists for both parents after the equalization of the permissions of 2019. The position of Equality, advanced by elDiario.es, has given hope to families in this situation, who claim the permission for both parents.
“When your baby is stillborn the autopsy is important, and I found the coldest act I could imagine.”
“We are turning to the Ministry of Equality, to the coalition government, who are the ones who have the power. They are the ones who can change this,” says Antonio, father of Valeria, who died at 39 weeks gestation.
Antonio and Noelia hope that the defence of paternity leave by the Ministry of Equality will serve to force a change in the policy of Social Security, the body responsible for resolving leave requests. At the moment, there are opposing voices within the Government.
In the Ministry led by José Luis Escrivá, the responsible in the matter, insist on the rejection of these permits based on a royal decree of 2009, which links the permit exclusively to the care of the child. For their part from Equality claim that “the law is clear about it”: “The Statute of Workers must be applied, something that the INSS knows perfectly, since it is also the rule that articulates the Spanish labor law,” they say in the department of Irene Montero, which is based on a “broader” idea of family care.
They ask Equality to intercede
From the Umamanita Association, support for perinatal and neonatal death, valued as “positive” that Equality considers that the right exists. But, after more than ten years of battle for the permission for both progenitorsthey need facts.
“With the 2019 law, it was a joy to see parents’ permissions being recognized after so many years of fighting for it. But in 2020, in the middle of the pandemic, parents start writing to us saying that they are denying the permits again,” explains Jillian Cassidy, founder and president of Umamanita. The Social Security had issued a criterion, accessed by this media, which concludes that the permits are denied.
Now the pronouncement of Equality has given hope to the group. “We would like to meet with the Ministry to address the issue, to try to urge the Social Security to change its interpretation, of course,” adds Cassidy.
“The fathers who go through this do not recognize us paternity leave and you are forced to go to the doctor, to explain what has happened to you and just giving you a leave for depression, because you can not work,” explains Miguel Angel Gorbe, lawyer and father of Naira, who also died past the 39th week of pregnancy. “We even feel guilty, as if we were cheating someone, when what we need is time for family reconciliation of this situation. In the end many take just a few days off and go back to work, with his wife alone at home having a terrible time after what happened,” he continues.
Parallel fight in the courts
As a lawyer, Miguel Ángel Gorbe felt the need to take Social Security to court to claim paternity leave. “If I don’t denounce it, I’m a lawyer…”, he says. She also created a blog to share what she and her partner, a midwife by profession, went through when their baby girl died just days before her due date and the related “bureaucratic problems”, which she says complicate the families’ grief. “We try to help those who go through this, something that is hardly talked about and that also needs to be made visible,” she says.
Gorbe’s complaint is awaiting a ruling from the Supreme Court. After several higher courts of justice (TSJ) recognized fathers in this situation paternity leave, in his case the TSJ of Aragon gave him a negative. After that, and with the other rulings as a contrast, he went to the Supreme Court to unify doctrine. “He admitted the appeal, which is very difficult, and the forecast is that the sentence arrives in December,” he says.
Robert Gutiérrez, a legal expert in labour law, agrees with the Ministry of Equality and considers that, with the current wording of the Statute of Workers, there is a right to leave for both parents. “One can even claim a violation of fundamental rights,” he explains, for a violation of the right to equality, and an economic compensation in case it is recognized.
Antonio and Noelia, for the moment, do not feel strong enough to file a complaint. “Fighting against the State…. We don’t have the strength or the money. What we have is our voice, that’s why we denounce what has happened to us and we ask the government to prevent other people from going through this in the future. If we can save them more problems, if Valeria gets that little miracle, we would be very proud,” says her father.
The families are also calling for other administrative changes to ease the hard times of grief that families face, such as being able to put the baby’s name in the family record book.
“Why should bereavement be complicated? It is a natural process of life, but if you lose a child and the Administration and the Government tell you that it is “a foetus”, that it doesn’t even deserve to have a name, nor can you register it in the family book, if they don’t grant you paternity leave…. When bereavement is disallowed in this way, it ends up being problematic in terms of mental health,” sums up Cassidy.