This complete global solution for HR professionals combines custom research, strategic white papers, country primers, webinars, and the expert guidance you’ve come to expect from...
By Brett Allan King
Nov. 4—Spain's Supreme Court has for the first time recognized the right to maternity leave of working parents who used surrogate mothers.
Ruling on two appeals by working parents denied benefits by the Social Security System, the court held that maternity by surrogacy or substitution may be considered a “protected situation” for the purpose of benefits for maternity, adoption or foster parenting.
While Spanish law forbids gestational surrogacy, the Supreme Court ruled that any other legal irregularities were secondary given that “attention to minors” takes precedence when it comes to Social Security benefits.
“For companies that have advanced on matters like conciliation and corporate social responsibility and the like, I don't think this is going to mean a major change,” Salvador del Rey, president of the Cuatrecasas International Institute for Legal Strategy on Human Resources and partner at Cuatrecasas, Gonçalves Pereira, told Bloomberg BNA Oct. 28.
According to del Rey, the ruling fits the existing tendency of most companies in recent years toward the reconciliation of work and family life when a real necessity exists, “and here there is obviously a real necessity” and an “objective fact” that will allow companies to grant maternity leave.
“Inasmuch as there is an official recognition of maternity, all maternity rights would apply in the exact same manner as they would to a biological mother, so our understanding is that nursing leave, the right to a reduced workday and all of those things would apply identically,” Valentín Bote, director of Randstad Research in Madrid, told Bloomberg BNA Oct. 28.
The court said its recognition of benefits in the two cases was an attempt to “unify doctrine” on the matter.
The first case involved a woman who used a surrogate gestation contract in California to produce a child, subsequently registered the newborn with the Spanish consulate in Los Angeles as her son and listed her partner as the father.
In a separate case, a man used his “genetic material” for reproductive assistance through a surrogate mother in India. While two girls born of that arrangement were listed in the consular registry as children of both parents, the mother yielded exclusively to the father “all functions and obligations derived from parental authority” before he took the children to Spain.
The Social Security System denied benefits in both cases on the grounds that Spain's Assisted Reproduction Act considers null any gestational surrogacy contracts.
The court held that the parents' situations warranted a “holistic interpretation of rules applied,” taking into account jurisprudence of the European Court of Human Rights and “various constitutional, legal and regulatory precepts.”
According to del Rey, the ruling taken “from the labor perspective is not so much the legality or illegality of the maternal surrogacy contract” or consular registration, but rather “whether or not it is necessary to take care of children.”
Another key component of the court's decision was its acceptance of the transferability of the standard 16-week maternity leave to the father of the child born of the surrogate mother in India.
“In the case of the man, be reminded that maternity benefits also cover cases of adoption or foster care, part of which the mother may partially transfer to the father; and in certain cases when the biological mother can't enjoy them (death, lack of protection) they are transferred to the father, as they should be in this case,” the court ruled.
Given the national ban on gestational surrogacy, some Spaniards seek solutions abroad, throwing the children of foreign surrogate mothers into situations of legal uncertainty.
The court determined that prohibitions of consular registration and surrogacy contracts were tangential to the real problem at hand: the denial of Social Security benefits.
Bote said he saw “no distortion in the functioning of companies” as a result of the ruling, mainly because employers have already accepted these situations as normal and incorporated them into their human resources practices.
Given established protocols and the relatively few cases of gestational surrogacy, Bote said the new reality should be accepted “without any sort of friction or conflict in the Spanish business environment.”
To contact the reporter on this story: Brett Allan King in Madrid at firstname.lastname@example.org
To contact the editor on this story: Rick Vollmar at email@example.com
For more information on Spanish HR law and regulation, see the Spain primer.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)