Examination of the financial assistance for maternity: biological paternity of a marriage between two men for subrogated gestation
The legislation always goes for behind changes in the society. It is for this reason that the new current family models do not find always a legal frame that it regulates completely its situation and its needs.
The analysed sentence determines if it has or not right to the maternity benefit a worker that he is the progenitor registered of two cufflinks children born through techniques of assisted reproduction of a biological mother that it gave up to its kinship, being its husband that which appears as the other progenitor registered of the children, having obtained this last one the provision for paternity.
It is a marriage between two men, which turn to techniques of assisted reproduction and to a subrogated gestation (belly of rent) in the United States to be parents. Two children born are registered in the Consular Record of the Ángeles appearing both such as progenitors and appearing both spouses in the booklet containing family details used for officia such as parents of cufflinks. One of them requests the provision for paternity and him is granted, whereas the other requests the maternity benefit and him is refused by the National Social Security Institute and for the Court of the Social thing.
The article 177 of the legislative law in force of the Social Security Act establishes that “For the purpose of the maternity benefit …, protected situations are considered the maternity, the adoption, the keeper with ends of adoption and the fostering, …”
The National Social Security Institute, making a strict interpretation of the current regulations, refuses the maternity benefit since the Spanish legislation does not contemplate this situation as a protégée and, also, forbids the gestation for substitution. Specifically the Act 14/2006, of 26 May, on attended human reproduction techniques in its article 10, establishes that “it will be null fully-fledged the contract through which the gestation is suited, with or without price, in charge of a woman that renunciation to the maternal kinship in favour of the contractor or of a third party”.
The Tall Court in its sentence understands that the fully-fledged invalidity of the contract of gestation for substitution, does not suppose that the minors born in those circumstances are damaged for the invalidity of the contract and are seen private, as a result, of certain rights. In the standard work there are suppositions in which legal businesses vitiates of invalidity produce effects, for example, the worker that has salary entitlement for the worked time even when the work contract was null.
Previously the Sentence of the Chamber First of the High Court in its sentence of 6 February 2014, appeal 245/2012 considered that “The European Court of Human Rights, when interpreting the article 8 of the European Agreement to protect the Human Rights and Fundamental Liberties, has considered that there where it is established the existence of a relationship of family with a boy, the State owes act in order to to allow that this link takes place and to give legal protection that it does possible the integration of the boy in its family”.
In this case, the cufflinks born of a belly of rent form a family unit with parents register them, who them provide parental attention and cares, reason why is owed of protecting this link, being the maternity benefit the suitable middle for this. Of not giving this provision a discrimination would be produced in try the minors because of its kinship, contravening the equality principle of the article 14 of Constitución and the article 39.2 of the Constitution “Authorities ensure, similarly, the all-inclusive protection of the children, equals these in the eyes of the law regardless of its kinship…”.
On the other hand, it is precise to take into account that so much the article 48.4 of the Workers' statute as articles 177 and 178 of the text in force Remelted of the Social Security Act to the regular one the maternity benefit, do not do if not fulfilling the constitutional mandate from protection to the family and the childhood.
Thus, in conclusion, the Tall Court interprets standards on maternity benefits to the light of the time's social reality in which have be applied and attending to the spirit and their aim. And is therefore that understands the High Court that to the biological father (for subrogated gestation) of the minors, which together with its spouse (to that which the provision recognises him to him for paternity) attends and it has care of the minors, he owes recognise it to him the right to the maternity benefit as only way of protecting integrally the familiar link and to the children, which must enjoy right equals regardless of its kinship.