Parental leave in the event of prenatal death: its recognition to the father or parent other than the biological mother

its recognitionto the father or parent other than the biological mother

Abstract

Prenatal death entitles the mother to a period of leave equivalent to that granted in the case of having a living child. However, in the case of the parent other than the biological mother, this right is in question, having been denied by the Supreme Court in its ruling of 5 July 2022. This paper takes a critical approach to this problem, starting with a historical review of the positive regulation, to provide arguments in favour of the equal legal treatment of the mother and the father. In this sense, Regional Courts of Justice had been pronouncing in favour of granting paternal leave and, moreover, the legislative reform of Royal Decree-Law 6/2019, unifies the former maternity and paternity benefits, pointing in the same direction.