Parental leave in the event of the birth of a stillborn child

Commentary on the Ruling of the High Court of Justice of Galicia 4053/2023 of 22 September and the subsequent Ruling of the Supreme Court 753/2023 of 19 October

Abstract

The right to economic benefits for the birth of a child in the case of a parent other than the biological mother, in the event that the child dies before birth, has been a subject of controversy. The legal regulation remains silent on the matter, while the regulatory development acknowledges the right in the case of the mother and denies it for the other parent. The issue is that the regulatory development predates Royal Decree-Law 6/2019, which significantly reformulated the legal framework for suspensions and economic benefits for childbirth, changing its nomenclature and clearly establishing the principles underlying this legal framework in its explanatory memorandum. The debate revolves around whether Article 26.7 of Royal Decree (RD) 295/2009 is still in force, and thus the other parent has no right to the benefit, or whether it should be interpreted that, following the legal reform, the principles of shared responsibility and equal treatment have fully equated the duration of the right. The Ruling of the High Court of Justice of Galicia 4053/2023 advocates for the latter interpretation, while the subsequent Ruling of the Supreme Court 753/2023 is categorical in stating that
RD 295/2009 is still in force and does not recognize the right to suspension or economic benefits for the other parent in these cases.