The ethics of care is not a feminine ethic but a feminist one, and feminism guided by the ethics of care could be considered the most radical liberalization movement in the history of humanity." Carol Gilligan
This article is about family care, working mothers, contributory bonus and its extension, in certain cases, to working fathers, but it is also about prejudices and gender roles that shamelessly re-cross our culture, our society and, of course, our law, which has gender and it is not the feminine one.
Last December, an order was issued by the Superior Court of Justice of the Canary Islands in which a preliminary ruling was raised before the Court of Justice of the European Union (CJEU). The preliminary ruling is a fundamental mechanism of European Union Law (EU) whose purpose is to guarantee the uniform interpretation and application of this Law within the Union. In Spain, its use is normalized and has determined important legislative changes in the labor and Social Security fields. It is a legal tool in which an interpretative doubt is formulated from Court to Court, in the application of a national norm (law) suspected of colliding with EU law. The European response will determine the decision of the consulting body, which motivates the suspension of the judicial procedure in progress until the question is answered.
The "maternity supplement"
The doubts of the Canary Islands Court arose in relation to the so-called "maternity supplement" regulated in article 60 of Royal Legislative Decree 8/2015 of October 30, which approves the Consolidated Text of the General Social Security Law (LGSS) in force since January 1, 2016, which establishes a percentage bonus (from 5% to 15%) in the contributory pensions of retirement, disability or widowhood, of those working mothers who have had two or more children (natural or adopted).
The purpose of the supplement derives from "their demographic contribution to Social Security", which seems to justify that it is limited exclusively to women. It is intended to compensate for the effort associated with such motherhood, softening the historical discriminations that have more intensely affected women than men. Therefore, the legal concept of "maternity" transcends the biological and is linked to the practice of care projected on the descendants, including, therefore, adopted children. The protected situation is the loss of job opportunities and the contribution gap linked to care, as a phenomenon of occupational discrimination, and as "work" penalized in a labor world that equates the good use of time with a concept of "productivity" forged without a gender perspective. The characteristics of the case being judged are summarized below.
Family care has historically been assumed by women, not for a biological issue or linked to sex but for cultural and social reasons linked to gender.
The main litigation
On October 30, 2017, a claim was filed by a male contributory retirement pensioner against a resolution of the INSS, which denied his right to a 15% increase on his retirement pension, as a maternity supplement, based on the fact that "its application is only contemplated for women".
The claim was dismissed by a judgment dated April 27, 2018 of the social court nº1 of Las Palmas de Gran Canaria, as the debated supplement is "an exclusive right of women".
On May 28, 2018, an appeal was formalized against the judgment by the plaintiff. The object of the appeal focused on the application of the maternity supplement to a widowed male father, with 4 biological children (born in 1980, 1982, 1989 and 1998), who after the death of his wife in 2003, dedicated time and effort exclusively to the care and education of his offspring, suffering therefore the same labor disadvantages linked to such practice.
Legal basis of the preliminary ruling raised
Compensating for the disadvantages suffered in the development of the professional career by working mothers constitutes a legitimate objective of social policy, but what raised the interpretative doubt of the Court was the absolute and unconditional exclusion of fathers, because this may encourage the female abandonment of the labor market, promoting the segregation of gender roles and the perpetuation of gender prejudices.
The Spanish maternity supplement is not linked to pregnancy or childbirth but to the upbringing of children, as a factor that negatively affects the contribution career. Family care has historically been assumed by women, not for a biological issue or linked to sex but for cultural and social reasons linked to gender.
However, the practice of caring can be performed by both women and men. Socially promoting the involvement of fathers in the upbringing of children is an advance towards co-responsibility and therefore, real equality between women and men.
The maternity supplement is a necessary measure to soften gender gaps, but clearly insufficient.
Limiting the subjective scope exclusively to the female group legally presupposes that men do not take care of their children. Such exclusion, without a safeguard clause, banishes from the supplement those fathers who, as in the case of the plaintiff, can prove that they have assumed the exclusive care of their children. Contribution, which becomes more evident when the biological mother of the children has died. Other similar situations are also excluded from access to the bonus, for example single-parent families of men, homosexual couples, adoptions of sons or daughters made by men, etc.
Based on the above, the Superior Court of Justice of the Canary Islands formulated four questions before the CJEU, for possible discrimination based on sex, of the widowed father plaintiff in the referred litigation.
Caring has no sex, it has gender
The maternity supplement is a necessary measure to soften gender gaps, but clearly insufficient because it does not provide current remedies for the real discriminations suffered daily by working women during their professional career, for not stopping caring.
The bonus must be applied, as a general rule, to pensioned mothers, as they are statistically the most affected by the labor gaps, derived from the unpaid "work" invested in caring, but it is also necessary to extend its application to working fathers who can prove the exclusive assumption of the care of children.
Care and assistance are not women's issues but universal human interests. We must lose the fear of the human capacity to care and extend it to the other half of the population to move towards a more egalitarian and co-responsible society. We must universalize care as a preventive tool against social and intra-family violence. Violence generates violence and care generates care.
By Gloria Poyatos, published in The Huffingtonpost
