Birth and Childcare Leave in Spain: Current Duration & Rules

🇪🇸 Read the original in Spanish

The arrival of a child is one of the most significant moments in anyone's life, but it also raises numerous questions from a professional and financial standpoint. In Spain, the legal framework has evolved drastically in recent years to guarantee co-responsibility and gender equality, unifying the former maternity and paternity benefits into a single right. Understanding how this benefit works, its application deadlines, and the requirements demanded by the Social Security system is essential to avoid losing financial rights or facing disputes with your employer. In this detailed guide, we thoroughly analyze the permiso por nacimiento y cuidado del menor (birth and childcare leave), breaking down the regulations of the Boletín Oficial del Estado (BOE, the Official State Gazette) so you know your rights in detail and how to exercise them with total security.

Legal Framework: Where is this right regulated?

Birth and childcare leave is not a mere concession from employers, but a fundamental right of workers protected by the State. Its main regulation is found in the following rules:

• *The Estatuto de los Trabajadores (Workers' Statute - Royal Legislative Decree 2/2015, of October 23): Specifically in its Article 48*, which details the duration, the suspension of the employment contract, and the rules for taking this leave.
• *The Ley General de la Seguridad Social (General Social Security Act - Royal Legislative Decree 8/2015, of October 30): In its Articles 177 to 182*, which regulate the financial benefit for birth and childcare, the contribution requirements, and the corresponding subsidies.
• Royal Decree-law 6/2019, of March 1: The key regulation that definitively equalized the leave for both parents, eliminating the distinction between "mother" and "father" to speak of the "gestating parent" and the "parent other than the biological mother".

Current Duration of the Leave and Distribution of Weeks

Currently, the duration of the birth and childcare leave is 16 weeks for both parents. This right is individual, non-transferable, and cannot be ceded to the other parent; if one of the two decides not to take their weeks, they are lost.

The distribution of these 16 weeks is carried out as follows:

• The first 6 weeks immediately following the birth: These are mandatory, uninterrupted, and must be taken on a full-time basis by both parents. Their purpose is to ensure the recovery of the biological mother and the care of the minor in their first weeks of life.
• The remaining 10 weeks: These are voluntary. They can be taken continuously or interruptedly, in weekly periods (either full-time or part-time, subject to prior agreement with the employer), within the 12 months following the birth of the baby or the judicial resolution of adoption or foster care.

Extension of Leave in Special Circumstances

Spanish legislation provides for the extension of the duration of the leave under certain exceptional circumstances:

1. Multiple birth, adoption, or foster care: The leave is extended by 2 more weeks (one for each parent) for each child starting from the second.
2. Disability of the minor: If the newborn or adopted minor has a disability, the leave is extended by 2 additional weeks (one for each parent).
3. Premature birth and hospitalization of the neonate: If the baby must remain hospitalized following the birth for a period exceeding 7 days, the leave will be extended by as many days as the newborn is hospitalized, up to a maximum of 13 additional weeks.

Requirements to Access the Financial Benefit

To be entitled to receive *100% of the base reguladora (regulatory base)* during the rest period, the Social Security system requires compliance with minimum prior contribution periods, which vary according to the age of the worker on the date of the birth or the adoption resolution:

• Under 21 years of age: No minimum contribution period is required.
• Between 21 and 26 years of age: Having contributed at least 90 days within the 7 years immediately preceding the start of the leave, or 180 days throughout their entire working life.
• Over 26 years of age: Having contributed a minimum of 180 days within the 7 years immediately preceding the start of the leave, or 360 days throughout their entire working life.

Note for those who do not meet the minimum: If the biological mother does not meet these contribution requirements, she may opt for the non-contributory birth subsidy, which has a duration of 42 calendar days (extendable in certain cases) and an amount equivalent to 100% of the daily IPREM (Indicador Público de Renta de Efectos Múltiples, the public income index) in force.

Amount of the Benefit: How much do you get paid?

During the leave, the employment contract is suspended. It is not the employer who pays the worker's salary, but the Instituto Nacional de la Seguridad Social (INSS, the National Social Security Institute).

The amount of the benefit is equivalent to *100% of the base reguladora** for common contingencies of the month prior to the start of the leave. On your payslip, this base is reflected at the bottom as "Base de contingencias comunes*".

Furthermore, a fundamental aspect that benefits recipients is that birth and childcare benefits are *exempt from IRPF (personal income tax) withholding*, in accordance with the jurisprudence of the Supreme Court and current tax regulations. Therefore, the net amount received is usually slightly higher than the usual net salary when active.

Practical Examples of Calculation and Distribution

To better understand how these rules are applied in the Spanish labor reality, we analyze two common scenarios.

Example 1: Distribution of leave and calculation of Carlos's benefit

Carlos works as a software developer with a permanent contract and a contribution base for common contingencies of €2,400 per month. His partner gives birth on May 15.

• The first 6 weeks: Carlos must obligatorily take the weeks from May 15 to June 25 on a full-time basis.
• The remaining 10 weeks: Carlos agrees with his employer to take 5 weeks in the summer (the entire month of August) and the other 5 weeks in December to coincide with school holidays.
• Calculation of the benefit: His daily base reguladora is calculated by dividing the monthly base by 30 days (€2,400 / 30 = €80 daily). During the 16 weeks (a total of 112 days of leave), Carlos will receive a gross total of €8,960 (€80 x 112 days) from Social Security, an amount on which no IRPF withholding will be applied.

Example 2: Extension for multiple birth for Laura and Marta

Laura and Marta are mothers of twins born on October 1. Being a multiple birth, the law grants them an extension of 2 additional weeks in total (one more week for each of them).

• Each of them will have a total leave of 17 weeks (119 days).
• The first 6 weeks are taken simultaneously and obligatorily after the birth.
• The remaining 11 weeks for each can be managed successively to prolong the care of the babies at home for more than 5 months without the need to enroll them in daycare prematurely.

Practical Procedures: Step-by-step to apply for the leave

To successfully process the benefit with the INSS and correctly notify your employer, follow these steps:

1. Prior communication to the employer: Although the law does not establish a strict deadline, it is advisable to give written notice at least 15 days in advance of the expected date of birth or the taking of the voluntary weeks.
2. Obtaining the maternity report: After the birth, the doctor from the Public Health Service will issue the medical birth report. If the birth takes place in a private hospital, you must go to your Social Security GP (médico de cabecera) to have this report validated.
3. *Registering the baby in the Registro Civil (Civil Registry): This procedure is usually carried out directly from the hospital itself or by going to the Civil Registry within 10 days following the birth. You will obtain the Certificado de Nacimiento* (Birth Certificate).
4. Applying for the benefit with the INSS: This can be done online through the "Tu Seguridad Social" portal (using Cl@ve, a digital certificate, or an electronic DNI) or in person at a Centro de Atención e Información de la Seguridad Social (CAISS, Social Security Service and Information Center) with a prior appointment.
5. Submission of the employer's certificate: The employer must electronically send the certificado de empresa (company certificate) to the INSS, stating the worker's contribution bases so that the administration can calculate the amount of the benefit.

Mistakes You Should Avoid

• Not giving prior notice to the employer with the dates of the split weeks: Although the first 6 weeks are automatic after the birth, the remaining 10 weeks require written notice to the employer at least 15 days in advance for each period you intend to take.
• Forgetting that the leave is non-transferable: Do not try to "cede" weeks to your partner. If the non-gestating parent decides to return to work 6 weeks after the birth and does not apply for the remaining 10 weeks within the first year, that time is definitively lost.
• Not applying for the benefit within the limitation period: The right to the recognition of the benefit expires 5 years from the day following the event, but delaying the application for more than 3 months from the birth can lead to the loss of the financial effects of the months prior to the application.
• Working as an employee or self-employed during the rest period: During the weeks of leave, it is strictly forbidden to carry out any active work, unless you have opted to take the leave on a part-time basis (which must be previously authorized and communicated to the INSS). Working covertly can lead to the loss of the benefit and serious penalties.

Frequently Asked Questions (FAQ)

What happens if I am dismissed while taking birth leave?

The dismissal of a worker during the period of suspension of the contract for birth and childcare is considered nulo (null and void) by Spanish legislation (unless the employer can unequivocally prove an objective or disciplinary cause completely unrelated to paternity/maternity). If you are dismissed, you must file a papeleta de conciliación (conciliation petition) within 20 business days.

Can I take the non-mandatory weeks on a part-time basis?

Yes. The 10 voluntary weeks can be taken on a full-time or part-time basis (for example, at 50% of the working day, which would double the duration of the leave to 20 weeks). However, this modality obligatorily requires a prior written agreement between the worker and the employer.

What happens to holidays accrued during birth leave?

The period of leave for birth does not interrupt the accrual of holidays. If your holidays coincide on the calendar with the period of suspension for birth, you have the right to take them once the leave ends, even if the calendar year to which they correspond has ended.

Am I entitled to leave if I suffer a miscarriage?

The law protects the biological mother in the event of the death of the fetus after having remained in the womb for at least 180 days (6 months of gestation). In this painful event, the gestating mother has the right to take the 16 weeks of leave for her physical and psychological recovery, although the non-gestating parent will not be able to take the voluntary part of the leave.

How does this leave affect self-employed workers (autónomos)?

Self-employed workers (autónomos) have exactly the same right to 16 weeks of leave and to receive *100% of their base reguladora of contribution. Furthermore, during the rest period, they enjoy a 100% exemption of the cuota de autónomos (self-employed quota)* to the Social Security, which means they will not have to pay their monthly fee while on leave.

In Summary

• Birth and childcare leave currently lasts 16 weeks for both parents.
• The first 6 weeks are mandatory, uninterrupted, and full-time immediately after the birth.
• The remaining 10 weeks are voluntary and can be taken in split periods within the 12 months following the birth.
• The financial benefit is equivalent to *100% of the base reguladora and is completely exempt from IRPF withholding*.
• The leave can be extended in cases of multiple birth, disability of the minor, or hospitalization of the neonate.
• It is an individual and non-transferable right: weeks not taken by one parent cannot be transferred to the other.

General legal information, not personalised legal advice. For your specific situation, ask your question for free at AbogadoAI — answers grounded in Spanish law (BOE), in English.

This is general information, not legal advice. Verify on the BOE or consult a lawyer for your specific case.