The Constitutional Court protects a single mother and orders a review of her leave

The Constitutional Court has granted protection (amparo) to Aloña Barrutia Errazquin, the biological mother of a single-parent family, concluding that the denial of the extension of her birth and childcare leave violated her right to equality before the law without discrimination based on birth. Judgment (STC) 61/2026, dated September 21, 2026, is published in the Official State Gazette (BOE) no. 269, dated October 29, 2026, in the Constitutional Court Section (reference BOE-A-2026-22712). The ruling annuls the resolutions of the National Social Security Institute and the judicial rulings issued in the case and orders the proceedings to be reopened.

The resolution is signed by the Second Chamber, presided over by Inmaculada Montalbán Huertas and composed of María Luisa Balaguer Callejón, Ramón Sáez Valcárcel, Enrique Arnaldo Alcubilla, César Tolosa Tribiño —the reporting judge for the sentence— and Laura Díez Bueso. The appeal for protection, number 8648-2024, is directed against the doctrine that had been denying biological mothers of single-parent families, who are employees, the possibility of adding to their sixteen weeks the leave that would have corresponded to the other parent.

The framework for the decision is STC 140/2024, dated November 6, which declared unconstitutional, without nullity, Article 48.4 of the Workers’ Statute Law and Article 177 of the General Social Security Law, as worded by Royal Decree-Law 6/2019, of March 1. The court then appreciated that the legal omission generated “ex silentio” a discrimination contrary to Article 14 of the Constitution, in relation to Article 39, because minors from single-parent families had access to a care period significantly shorter than those born into two-parent families.

A timeline of administrative and judicial denials

The case begins with the birth of the appellant’s son on November 21, 2021, within a single-parent family. The subsequent course of events was as follows:

• December 1, 2021: the INSS recognizes the benefit for birth and care of a minor for sixteen weeks, expiring on March 12, 2022, with a daily regulatory base of 135.67 euros.
• December 17, 2021: the INSS denies the extension of another sixteen weeks, alleging that current legislation does not provide for adding the weeks of the other parent.
• January 3, 2022: the prior administrative claim is dismissed for the same lack of legal provision.
• December 16, 2022: Social Court No. 3 of San Sebastián upholds the claim and recognizes sixteen additional weeks (judgment 349/2022, proceedings 94-2022).
• May 23, 2023: the Social Chamber of the High Court of Justice of the Basque Country revokes that judgment and confirms the denial, aligning with the doctrine of STS 169/2023, of March 2 (judgment 1310/2023, appeal 494-2023).
• October 1, 2024: the Social Chamber of the Supreme Court declares the appeal for cassation for the unification of doctrine inadmissible due to lack of cassation content (appeal 344-2024).
• January 14, 2025: an appeal for constitutional protection (recurso de amparo) is filed before the Constitutional Court.

Concession by Social Security and applied doctrine

The Third Section admitted the appeal for processing on May 25, 2026, due to special constitutional significance. The Public Prosecutor’s Office requested its approval on July 9, 2026, and the lawyer for the Social Security Administration, representing the INSS and the General Treasury of Social Security, conceded on July 21, 2026. This concession was based on Instruction 10/2024, of December 23, which authorized the central delegated legal service of the INSS to concede in protection appeals affected by the seventh legal ground of STC 140/2024.

The court applies this same doctrine and recalls that the consolidated criterion consists of adding to the biological mother’s leave the ten weeks corresponding to the other parent, excluding the first six weeks of mandatory and uninterrupted enjoyment following childbirth, in accordance with STC 46/2026, of June 22. For this reason, it also annuls the favorable lower court judgment, which had granted sixteen additional weeks without deducting those six.

The scope of the ruling

The judgment upholds the claim for violation of Article 14 of the Constitution and declares the nullity of the INSS resolutions of December 17, 2021, and January 3, 2022, judgment 349/2022, judgment 1310/2023, and the order of the Supreme Court of October 1, 2024. It reverts the proceedings to the moment immediately preceding the denial resolution so that the INSS may issue a new resolution respectful of the recognized fundamental right and the scope established in legal ground 7 of STC 140/2024. Recognition remains subject, in any case, to the remaining legal requirements of the benefit, including the effective rest period without provision of services and that the minor has not turned one year old during the enjoyment of the benefit.

The ruling consolidates the criterion that mandates the review of denials issued under a regulation already declared unconstitutional and affects thousands of single-parent families who saw their care period reduced. For readers, the practical key is that the administrative route remains open: the INSS must resolve again, and the ten additional weeks are configured as the constitutionally required minimum, not as a discretionary grant.

Source: Official State Gazette, no. 269, October 29, 2026, Constitutional Court Section, p. 145226 (official reference: BOE-A-2026-22712).