The question raised concerns the conditions under which the birth permit must be enjoyed by the biological mother if she chooses to enjoy it on a part-time basis.

First of all, the legal framework for implementation must be analysed. Article 49 of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees, regulates the birth permit for the biological mother by establishing different possibilities of enjoyment in the following terms:

(a) Birth leave for the biological mother: it shall last for sixteen weeks, of which the immediate six weeks after childbirth shall in any case be mandatory and uninterrupted rest. This leave will be extended by two more weeks in the case of the child ' s disability and, for each child from the second in the case of multiple childbirth, one for each of the parents.

However, in the event of the death of the mother, the other parent may make use of the totality or, where appropriate, of the part of the leave that remains.

In the event that both parents work and after the first six weeks of compulsory rest, the period of enjoyment of this leave may be carried out at the will of both parents, on an interrupted basis and exercised from the end of compulsory rest after childbirth until the child reaches the age of twelve months. In the case of interrupted enjoyment, a notice of at least 15 days will be required for each period of enjoyment and will be carried out for full weeks.

This permit may be enjoyed full-time or part-time, when the needs of the service allow it, and in the terms determined by regulations, in accordance with the rules established in this article.

In cases of premature birth and in those cases in which, for any other reason, the neonate must remain hospitalized after delivery, this permission will be extended in as many days as the neonate is hospitalized, with a maximum of thirteen additional weeks.

In the event of the death of the child, the duration of the leave will not be reduced, unless, after the end of the six weeks of mandatory rest, the return to work is requested.

During the enjoyment of this permit, once the mandatory rest period has ended, it will be possible to participate in the training courses convened by the Administration.

For the purposes of this paragraph, the term biological mother also includes trans pregnant persons.

Thus, the third paragraph of Article 49 (a) of the TREBEP provides that the birth permit may be enjoyed full-time or part-time, when the needs of the service permit it, and in the terms determined by the regulations.

Thus, the regulatory regulation is found in Royal Decree 180/2004, of 30 January, which adopts measures for the reconciliation of work and family life in relation to the part-time enjoyment of the permits included in article 30.3 of Act 30/1984, of 2 August, on Measures for the Reform of the Civil Service, implemented in the name of the fourth final provision of the TREBEP, in so far as it does not contradict the provisions of this text.

In view of the above, the question raised focuses on how the birth permit is to be enjoyed in its part-time mode. To do this, we must comply with the provisions of Royal Decree 180/2004. The issues raised are thus analysed:

1. Weeks in which you can enjoy the part-time permit.

The number of weeks that can be worked part-time during the maternity leave would be ten when the needs of the service allow it, given that the first six weeks immediately after childbirth are mandatory for the mother, so it is understood that in this case no activity can be carried out either totally or partially, an aspect confirmed by article 3 of Royal Decree 180/2004, which provides:

“The part-time enjoyment of the permits included in section 3 of article 30 of Law 30/1984, of 2 August, shall comply with the following rules:

a. This right may be exercised by both the mother and the father, and in any of the cases of simultaneous or successive enjoyment of the rest period.

In the event of childbirth, the mother will not be able to use this form of leave during the six weeks immediately following childbirth, which will be mandatory rest.”

2. Duration of the permit in case of part-time enjoyment.

With regard to the calculation of the total duration of the permit, the period of 10 weeks would be extended in proportion to the proposed working day. In this regard, Article 3(b) of Royal Decree 180/2004 states:

“The period during which the permit is enjoyed will be extended proportionally depending on the working day that is performed, without, under any circumstances, exceeding the duration established for the said permits.”

3. Limitations on the enjoyment of the permit.

Article 3 (c) and (d) of Royal Decree 180/2004 specifically establishes two limitations on the enjoyment of the birth permit in its partial form:

c) “The enjoyment of the permit in this modality will be uninterrupted. Once agreed, the agreed regime can only be modified by a new agreement between the competent authority for the granting of permits and the official concerned, on the latter ' s initiative and on grounds relating to his or her health or that of the minor.

(d) During the period of part-time leave, the official may not perform extraordinary services outside the time required to do so."

Just as it is prohibited for the official who enjoys this permit to perform extraordinary services outside the day he must observe on a part-time basis, it also establishes the incompatibility of the same and other permits that may be requested simultaneously, such as the one for breast-feeding, the reduction of the day for legal custody or the leave for the care of children and other dependent relatives as indicated in article 4 of the aforementioned Royal Decree and has confirmed the jurisprudence in various pronouncements such as the judgment of the TSJ of Catalonia of 20 May 2004; STSJ of Catalonia of 7 November 2004; or the judgment of the TSJ of Madrid of 27 September 2004.

All of the above is without prejudice to remember that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.