The Spanish Constitution declares that the fundamental core of our social and democratic state is the principle of equality which is reflected with special reference concerning children in Article
39. It is a precept that imposes on public authorities the duty to guarantee social, financial and legal protection to the family and, very specifically, integral protection to the sons and daughters, imposing on the parents the duty to aid and support them in all matters.

Therefore, this protection has to be especially strong in the first moments after the arrival or incorporation of the child in the family. The state has to help the parents to fulfil this duty as much as possible.

There is no doubt that, despite the fact that some progress has been made in this direction in Spanish Law, there still exist unresolved matters, parti-
cularly those referring to maternity leave in the situation of the arrival of a child in adoption.

Until 1996, in the case of biological filiation, maternity leave was (and still is) 16 weeks (extended to 18 in the case of a multiple birth). Mean-
while, in the case of adoption, maternity leave only lasted 8 weeks, a period that was reduced to 6 if the child was aged between 9 months and 5 years.

In the past, maternity leave reflected an exclusive philosophy: the binding over the normal period of lactation and, above all, a period of rest aimed at attempting to restore the physical health of the mother. However, today we can state without any doubt that this is far from being the only or even the main justification of such leave. There are two other basic reasons: to avoid the child’s arrival undermining the work situation of the mother during the first months and, more than that, the essential care and protection that is needed by the minor. The aim is to try to achieve the greatest degree of desirable coexistence that should take place in these moments in order to encourage a better mutual knowledge, a symptom of the integration of the child in the family life.

If these are the main reasons for maternity leave, then this is why we should question the present insufficient treatment concerning adoptive parents who have finally managed to get a child after a very long and difficult wait.

(...) Now, through the Law of the Conciliation of Family and Working Life, very great improvements in this area have finally become a reality. They refer to the following points:

1) Equality in maternity leave because, considering the above mentioned present situation, in the case of adoption, maternity leave is now 16 weeks when the child is less than six years of age, an age when compulsory schooling is required.

2) Another significant new feature concerns multiple adoption. As is already well-known, in the case of a double birth, in biological filiation, two additional weeks are provided per each child. The same should apply to adoptive filiation. It is true that there are only a few cases, but there are some cases in which two, three or even four siblings are being given for adoption. As is logical, the social services try to keep them together with one adoptive couple instead of distributing them.

3) Similarly, the Law attempts to reply to the problems that exist in the case of international adoption, where the presence for some degree of time is required in the child’s country of origin. Concerning this matter, even though other solutions could exist, there is no doubt that the new resolutions expressed by the Law of Conciliation imply progress. It provides that, in these cases, maternity leave may start up to four weeks before the resolution that constitutes the adoption.

4) It also deals with the present reality of a child being adopted from places such as India, where the term used by the legal authorities is that of «guardianship», while in other countries it is referred to as «simple adoption», although it has identical effects to our fostering or adoption. In fact, on different occasions, some problems arose when maternity leave was requested after return-
ing to Spain. Therefore, in order to avoid any civil servant making any kind of restrictive inter-
pretation, the new Law considers these circums-
tances as being equivalent to maternity leave.

5) Another new feature of the Law is that both adoption and fostering, not just pre-adoption but also permanent adoption, will be considered on the same basis as regards maternity leave. Thus, some of the problems associated with permanent adoption will be avoided. Also, we have to underline the introduction of the possibility, in the case that both the mother and the father are working, that leave may be shared out as best suits them, so that they can make use of it simultaneously or one after the other, provided that the periods are uninterrupted.