The STS of July 5, 2022 (RCUD 906/19): no to paternity leave in cases of fetal death

Abstract

The High Court examines whether it is in accordance with the law - and, more specifically, with the postulates of Art.14 of the EC - to deny the extinct paternity benefit when the intrauterine death of the child occurs after 180 days of gestation. Based on the recitals contained in STC 111/18, the focus is on the different purposes served by what were previously known as maternity and paternity benefits; the different grounds on which they are based is the circumstance that legitimises the different treatment that the death of the child entails for the mother (granting of the benefit) in relation to the father (refusal of the benefit). The Chamber’s decision is not unanimous, as can be inferred from the dissenting votes.
This study closes with an examination of a Ruling of the TSJ of Catalonia (dated 17 October 2022) which, while addressing the same problem, provides us with a different solution, in view of the date on which similar events took place.