Will mothers of children who died 24 hours after birth be able to collect the maternity pension? The recent ruling of the Social Court 25 of Barcelona, which establishes that a stillborn baby can be counted as a child when calculating the maternity supplement in pensions, could be retroactive and even go so far as to modify current regulations.
The lawyer Fernando González explains it from DS Legal, who, however, recalls that this sentence, which maintains that a baby who has died during childbirth or during the next 24 hours must count, can still be appealed. “If it is not, or if the judges’ decisions continue to support the ruling of this court, it would join
to another relevant one in this regard: that of the Superior Court of Justice of the Basque Country, of 2018, which granted the birth benefit to parents whose child had died before birth. Both decisions, clarifies the lawyer, “do not create jurisprudence, but they could be taken as a reference by other judges to issue related sentences.”
There is still a long way to go in the courts for this judicial ruling, which is highly mediated due to its possible economic implications in the current National Pension System and also, González qualifies, “for serving a more humanistic and flexible spirit in the application of the law”. If it is established in our legal system and the right to benefit is recognized in cases such as the one prosecuted, adds the lawyer, “and taking into account that in that case it would display more favorable rights and conditions for citizens, it should be retroactive. , at least for those people who, meeting the established legal requirements, are still within the time period protected by the benefit, that is, sixteen weeks, and for the remaining time ”.
In this way, as a consequence of all this, they explain, “it could even lead to a change in pension legislation that affects both parents, specifically, in relation to the supplement provided for in other pensions such as retirement pensions and the opening of pensions. a possibility to claim amounts retroactively ”. An interesting question will be, warns Fernando González, “the requirement currently required that only the sons or daughters who, prior to the event causing the corresponding pension, had been born alive or had been adopted, will be counted.”
From DS Legal, experts in health law, value this sentence as «an adaptation of the law to social and ideological changes, as well as to new social needs that may arise, among other reasons, for reasons of social justice. Thus, it is already foreseen that, in the event of the death of the child, the protective action of the birth benefit will continue to unfold its effects until, at least, the first six weeks, at which point it will cease, if the beneficiary decides to rejoin the position of job”.
Now, it is possible, clarifies Fernando González, “that the legal debate should focus on whether the death occurs during childbirth, that is, during that period of time in which it is not easy to discern whether the detachment of the mother’s womb is understood to have occurred. or not. The Civil Code, in its article 30, establishes that exclusively the detachment of the mother’s womb to acquire personality and display legal effects; But now it is no longer required for this detachment to occur and for the baby to remain alive for twenty-four hours to do so.
On the other hand, he concludes, “we must also assess the cost that these measures would entail for the public coffers, especially depending on the period that, retroactively, would allow claiming the benefit.” “This situation could also open a new battlefield for the Tax Agency which, in addition to receiving an avalanche of claims, would force many of the doubts raised by the new measures to be raised in front of the courts.”