Spain: Supreme Court OKs Maternity Leave For Surrogate Babies

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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.

Unification of Doctrine

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.”

Maternity Leave Transferable to Father

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

To contact the editor on this story: Rick Vollmar at

For More Information

For more information on Spanish HR law and regulation, see the Spain primer.

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