The Supreme Court says that only children born alive count for the maternity supplement of pensions

MADRID, 10 Mar. (EUROPA PRESS) -

The Supreme Court (TS) has indicated that only children born alive can be counted for the purpose of calculating the amount of the maternity supplement of the pensions of article 60 of the General Law of Social Security (LGSS). The court emphasizes that "this is expressly stated in the current legal text" where "the requirement that children must be born alive so that they can be computed for the purposes of this supplement is crystal clear."

In a sentence of the Social Chamber, to which Europa Press has had access, an appeal is considered for the unification of doctrine of the National Institute of Social Security (INSS) against a resolution of the Superior Court of Justice of Cantabria which raised from 10% to 15% the maternity supplement of a woman's pension when calculating a child who was stillborn after nine months of gestation.

The woman had a recognized retirement pension and a 10% maternity supplement for the birth of three children. She filed a lawsuit claiming a percentage of 15% for the birth of four children, including the one who was stillborn. A Santander court dismissed the claim, but the Superior Court of Justice of Cantabria upheld his request and raised the supplement by the requested amount.

The Supreme Court emphasizes that in this case the purpose of demographic contribution is not fulfilled, nor is it that of attention and care of the children of Article 60 of the LGSS, which states that "for the purpose of determining the right to the supplement, as well as its amount, Only sons or daughters who, prior to the event causing the corresponding pension, had been born alive or had been adopted, will be computed".

"As we have already said and the Public Prosecutor's Office clearly shows in its report, the maternity supplement does not pursue the objective of protecting pregnancy, but to compensate for the demographic contribution derived from the birth rate in the terms analyzed," he adds.

The resolution of the high court specifies that "the attention and care of children thus becomes the essential axis on which the recognition of the supplement pivots", to the point that the current article 60 of the LGSS denies its recognition to mothers (and fathers) who are deprived of parental authority for failing to comply with the duties inherent to it, or who have been convicted of exercising violence against their sons or daughters.

The Chamber also considers that in this case "it does not make sense to invoke the application of the gender perspective" because the norm affects "equally and without any distinction to men and women". And he adds that it would lose the purpose that justifies the use of such a fundamental tool.

The sentence includes a particular opinion of the president of the Chamber, Rosa María Virolés, in which she defends that in this case the supplement interested in this son should be granted, considering that the gender perspective reinforces this conclusion and there is no legal reason to depart from it based on the doctrine of the Chamber itself, taking into account the circumstances of the case, and the disadvantages that a woman suffers in her career due to maternity.

On the other hand, the Chamber has examined another case and has dismissed the appeal for the unification of doctrine filed by the INSS against the ruling of the Superior Court of Justice of Cantabria that raised from 5% to 15% the maternity supplement in the a woman's pension for the birth of triplets who died a few hours after delivery.

The Chamber clarifies that there is no contradictory doctrine that should be unified since the cases of the appealed sentence, in which the children are born alive and die within a few hours, and those of the reference sentence, in which the fetus is born dead , They are different.