Paternity and maternity benefits for same-sex couples

In the vast majority of cases, paternity or maternity benefit relates to heterosexual couples, but… What happens in the case of applications for paternity and maternity benefits by same-sex couples?

Who is eligible for paternity and maternity benefits?

For a same-sex couple to be eligible for paternity or maternity benefit, it is essential that there is a legal relationship with the child, either because whether one partner is the biological parent or has been legally adopted. An employee shall not be entitled to take leave simply because they are married to the biological or adoptive mother or father.

Adoptions by female couples

In the event that a female couple adopts a child, one of them will be entitled to maternity leave and the other to paid paternity leave and leave of absence.

In the event that one of the two women is the newborn’s biological mother, she will automatically start her maternity leave, with the 6 weeks of compulsory compliance. Their partner will be eligible for paid paternity leave and leave of absence if the adoption procedures are successfully completed.

Adoptions by same-sex male couples

When two men are going through the adoption process for their daughter or son, it is both parents who will be entitled to paternity and maternity benefits. It will be up to the couple to decide independently who will take each period of leave and whether to combine their maternity leave.

It should be noted that, for adoptions taking place on or after 1 January 2017, a father applying for paternity leave will be entitled to four weeks (28 calendar days). The partner who opts for paternity leave may also be entitled to the paid leave for the birth of a child as set out in the collective agreement applicable to their company.

Surrogacy and paternity and maternity benefits for same-sex couples

In cases where the newborn has been carried to term via surrogacy outside Spain, both parents must adopt the child and They will agree on who will apply for maternity leave and who will apply for paternity leave.

Whilst there is no specific legislation governing maternity and/or paternity benefits in such cases, the courts – in upholding the best interests of the child conceived through surrogacy – recognise the right to the various benefits; for if this inclusive interpretation were not applied, it would result in unequal treatment of the child on the grounds of their parentage, contravening the provisions of Articles 14 and 39.2 of the Constitution, which establish the obligation of public authorities to ensure the comprehensive protection of children, who are equal before the law, regardless of their parentage.

With this comprehensive interpretation of the applicable legal provisions – not only of the Spanish legal system but also of the European Convention for the Protection of Human Rights and Fundamental Freedoms – and in the light of the case-law of the European Court of Human Rights, which protects the family and children as the best interests that must prevail in the event of interpretative doubt, the Supreme Court, in a recent judgement, has recognised maternity benefits in cases of surrogacy, ruling that Social Security benefits are granted in the best interests of the child, a prevailing view regarding prohibitions on registration or even regarding the legality of the surrogacy contract itself.

As precedents, we may also cite the judgements of the Labour Chamber of the High Court of Justice of the Basque Country of 13 May 2014 (appeal number 749/2014) and of the High Court of Justice of Catalonia of 15 September 2015 (appeal number 2299/2015). Both judgments recognised the applicants’ right to the benefit claimed and are the subject of appeals on points of law to the Supreme Court for the unification of doctrine.

Let’s hope our article on paternity and maternity benefits for same-sex couples I hope this helps you to better understand the situation of the LGBT community in Spain. You can contact the specialist solicitors at Auris, who can help you with any queries you may have.

Allende Azcárate
Employment management
Human Resources

Source: Factorial