From differentiated maternity and paternity protection to shared parental protection and childcare from a constitutional perspective

Abstract

The latest rulings of the Constitutional Court on whether the different length of maternity and paternity leave was discriminatory fuelled a social debate about the need to foster shared responsibility. The Constitutional Court ratified its established doctrine in this regard and the lawmaker closed the debate by equalising rights - and duties - for both parents. The virtual nature acquired by the constitutional mandate contained in Article 9.2 EC of Organic Law 3/2007 invites us to reflect on this constitutional doctrine, under the premise that all differentiated treatment based on maternity should be submitted to legitimacy, reasonableness and proportionality. However, it should also be submitted to their connection or their contribution in order to achieve real and effective equality between women and men in the labour market, and should be discarded when it forms the basis for fewer employment opportunities for women.