Father's right to receive paternity and parental allowance if he has not lived in the same household with the mother of the child (TAS 267/2014, issued on 16 February 2015)
A single father contacted the Ombudsman for Equality concerning his ineligibility to receive paternity and parental allowance, due to the fact that he had never lived in the same household as the mother of the child. The father felt that this practice was in violation of the Act on Equality Between Women and Men (Equality Act), because a single mother would receive maternity and parental allowance in a similar situation, regardless of the circumstances. The father appealed Kela's decision with the Social Security Appeal Board, but the decision remained in effect.
The Ombudsman for Equality responded that her mandate included the oversight of compliance with provisions concerning the prohibition of gender discrimination and promotion of gender equality under the Equality Act. However, the application of legislative power and law falls outside the oversight purview of the Ombudsman for Equality.
In her statement, the Ombudsman for Equality stated that women on maternity leave and men on paternity leave are not, as a rule, in a mutually comparable situation. Maternity and paternity allowance are different benefits and, according to the preparatory legislative work for the Health Insurance Act, they serve different purposes. The paternity and parental allowance paid to fathers provides an incentive for them to participate in the care of their children and build a good relationship with them. Maternity leave is intended not only to provide care to the child, but also to ensure the health of the mother, allowing her to recuperate from the pregnancy and childbirth. Under the Equality Act, the special protection of women due to pregnancy or childbirth cannot be considered gender-based discrimination. The requirements for receiving maternity and paternity allowance may therefore differ from one another, without this being considered a case of treating women and men differently on the basis of gender.
The Ombudsman for Equality stated that, unlike when assessing maternity and paternity leave, when it comes to parental leave women and men should be treated in basically the same manner, because mothers and fathers are equally entitled to take parental leave. However, according to the Ombudsman for Equality, this particular case primarily deals with the different treatment of men in different family situations. In this case, the situation of a father who was not married to or in cohabitation with the mother of the child needs to be compared to the situation of a father who had been married to or in cohabitation with the mother of the child. Under existing legislation, the basis for granting parental allowance to fathers is a family arrangement, in which both parents and the child live together when the child is born or when the parents are divorced after the child is born.
The concept of family is constantly changing in society. Changes in the concept of family have had an impact on family leave schemes and related legislation, but often only after a delay. For example, the concept of a father being on equal terms with the mother in caring for the child has altered family leave schemes. The separation situations of the parents have also been gradually taken into consideration in family leave schemes, but not in cases where the initial situation involved a single father or the parents living in separate households.
The Ombudsman for Equality has no authority to amend the provisions of the Health Insurance Act (Chapter 9, sections 1, 6 and 8), which address the right to paternity and parental allowance. In Finland, legislative power belongs to Parliament. Legislative amendments may be made in Parliament with a Government proposal, a legislative motion submitted by a Member of Parliament or a citizens' initiative. Amendments to the Health Insurance Act are being prepared in the Ministry of Social Affairs and Health.
As regards the right to parental allowance, the Ombudsman for Equality contacted the Ministry of Social Affairs and Health to request that it would investigate possibilities for the amendment of Chapter 9(8) of the Health Insurance Act so that a father who was not married to or in cohabitation with the mother of the child would be eligible to receive parental allowance should the parents so agree. This amendment would also encourage fathers in this particular situation to participate in the care of the child. This would have a positive impact on gender equality, as the child could be cared for by the parent whose employment and other circumstances are best suited to parental leave, regardless of gender.