It points out that not doing so would penalize “who acts as the mother of the adopted minor despite not having carried him in her womb”
MADRID, 26 Ene. (EUROPA PRESS) –
The Supreme Court (TS) has recognized in a ruling the right to maternity benefit for a woman who adopted her spouse’s biological child, gestated by surrogacy, despite the fact that the father had already received his own benefit, by consider that “the protection of the minor should prevail”.
The Social Chamber, in line with the Prosecutor’s Office, agrees with the woman against the ruling of the Superior Court of Justice of the Basque Country that supported Social Security, which denied the maternity benefit, with which the TS confirms the original decision of the Social Court number 11 of Bilbao.
The magistrates establish that, with the regulations prior to the 2019 reforms, the adopter is entitled to the benefit, even if the biological father had already enjoyed it and did so when the woman was already living with her spouse.
The Supreme Court reaches that conclusion by considering, first, that the prior cohabitation between the adopter and the minor does not prevent the birth of the right to enjoy Social Security benefits.
In this sense, it reasons that “having time away from work, not only to care for the minor, but also to strengthen affective ties and fully live the experience, is still entirely possible in these cases.”
Likewise, it indicates that “conditioning the right of the adopter to data that depends on their previous affective relationships is equivalent, indirectly, to adding a requirement for the benefit to be enjoyed and to making those who are linked to the biological parent in a worse condition” .
For this reason, it carries out an interpretation that it considers more in line with the protection of the family recognized in article 39 of the Constitution, warning that “the opposite would lead to the fact that in many cases of adoption there would be no right to maternity leave, nor to the corresponding benefit, since the prior coexistence of the adopter and the adoptee is normal”.
Secondly, the Supreme Court indicates that “‘surrogate pregnancy’ is innocuous for the purposes of obtaining the Social Security benefit for adoption”, arguing that the minor can generate two successive benefits, therefore the circumstance that the biological father would have previously taken paternity leave.
The high court emphasizes that the appealed sentence proves that “the adopter acts as the ‘de facto’ mother” of the child and, nevertheless, the time of subsidized suspension is not recognized, so that “the conduct associated with the role of the one who exercises as the mother of the adopted minor despite not having carried him in her womb”.
“Reality can show cases in which the very rule that the same minor cannot cause two benefits of the same nature is meaningless, which would happen if the first adopters died and others began to assume that function,” he points out.
Thus, it states that “what happens is that in such cases the rule excludes this possibility when, with respect to adoption or foster care, it indicates that ‘in no case can the same minor be entitled to several periods of suspension'”.
“But here we are not dealing with two benefits derived from adoption, since that of the biological father has been linked to the birth,” says the ruling, a presentation by Antonio Sempere.
It also highlights that “the protection of the minor must prevail” and, through the strict but not restrictive interpretation of the legal requirements, grant the benefit (and the right to parallel contractual suspension) to any person who meets the requirements at the same time required by our legal system, because “without a prohibitive rule, the deployment of the effects legally provided for each event (here adoption) should not be prevented”.
