Case initiated with regard to a provision that does not provide for the right of a child’s birth mother’s female partner to a leave after the birth of the child
On 16 December 2019, the 2nd Panel of the Constitutional Court initiated the case “On compliance of Section 155(1) of the Labour Law with the first sentence of Article 110 of the Constitution of the Republic of Latvia”.
The contested provision
Section 155(1) of the Labour Law: “The father of a child is entitled to a leave of 10 calendar days. Leave to the father of a child shall be granted immediately after the birth of the child, but not later than within two months from the birth of the child”.
The provision of a higher legal force
Article 110 of the Constitution of the Republic of Latvia (hereinafter – the Constitution): “The State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child. The State shall provide special support to disabled children, children left without parental care or who have suffered from violence.”
The facts
The case has been initiated on the basis of an application by a private individual (hereinafter – the Applicant). According to the Applicant, she and her female partner have been in a relationship and shared a common household for more than 10 years and should therefore be regarded as a family within the meaning of the first sentence of Article 110 of the Constitution. A child was born to this family following a joint decision by the two respective individuals, after which the Applicant wished to exercise the right to a leave of 10 calendar days, as provided for by Section 155(1) of the Labour Law. However, the mentioned provision only grants this right to a child’s father, but not to the female partner of a child’s birth mother, even though in the given situation she is actually one of the new-born child’s parents.
The Applicant holds that by adopting, inter alia, the contested provision, the legislator has not created a system for social and economic protection of the family which would include individuals like the Applicant. The system that was established in the state is historically only meant to ensure social protection of opposite-sex partners and their children. Therefore, the contested provision allegedly infringes on the Applicant’s fundamental rights as enshrined in the first sentence of Article 110 of the Constitution.
The court procedure
The Constitutional Court has requested the Saeima to submit to the Constitutional Court a written reply containing a statement of the facts of the case and the legal reasoning by 17 February 2020.
The deadline for preparing the case is 18 May 2020. The Court will decide on the type of procedure and the date for hearing the case after the case has been prepared.
Linked case: 2019-33-01