Paternity leave is an economic benefit paid by the EPS’s (health care insurers). It entails eight business days of paid leave for workers that become parents due to a birth from their spouse, permanent partner, or for adopted children.
Requirements for obtaining this paid leave are:
(i) a number of weeks should have contributed to the Social Security System for Health at the moment of birth or the day the adoptive parents are given custody of the minor.
(ii) present the birth certificate within 30 days of the date of birth or the Child Custody Certificate issued by the ICBF (Colombia Family Welfare Institute).
Equality regarding economic benefits for adoptive parents is an issue ruled by the Constitutional Court of Colombia. On several occasions, the Court has ruled that adoptive parents, as long as the adoption has been legally proven, are entitled equal terms and conditions as birth parents. In the eyes of the Court, it is not acceptable to deprive adopted girls, boys, and adolescents the chance of enjoying the benefits that seek to ensure a proper integration for them into the adoptive family. These benefits include the formation of strong bonds of belonging and safety. But in practice, since there is not a specific law, the EPS’s have different requirements when granting paternity leave. Some request proof of the adoption petition. Others require the Child Custody Certificate. And still others ask for the birth certificate with the official adoption registration.
As a result, in order to determine when the adoptive parents can legally obtain paternity leave, it must be considered that the adoption process for minors under 18 years old has an administrative procedure before the ICBF, as well as a judicial proceeding before the Family Court.
- Adoptability of the boy, girl or adolescent is declared.
- The ICBF Adoption Committee chooses a family for the minor, the family agrees to receive the minor, and the Child Custody Certificate is issued.
- Finally, once the minor is with the proposed adoptive family, integration studies are conducted and an Integration Certificate is issued. This brings the administrative procedure to an end.
- This proceeding begins with the adoption petition.
- The judicial proceeding ends with a ruling of the adoption that shall be registered with the Civil Registry.
Considering the time the administrative and judicial proceeding take, the time between the moment the minor is received by the proposed family and the Court ruling declaring it a legal adoption is considerable. For this reason, the Colombian Constitutional Court has decided that the Child Custody Certificate is the relevant document to be considered in order to grant paternity leave. This, due to the fact that it is at that moment that the proposed parents need adequate time to initiate the integration process with their child.
From the moment the Custody Certificate is issued, there is still a long road to travel to get the Adoption Certificate. Up until the Family Court ruling is final and enforceable, the Custody Certificate is revocable. Therefore, delivering the minor to the proposed family DOES NOT give them legal adoptive rights. What it gives the adoptive parents, is an expectation that the adoption will take place. This, it is reasonable to question whether paternity leave is justified when the adoption can still be revoked.
Based upon this, the criteria of the Colombian Constitutional Court has been that, although with the Family Court ruling the adoption is irrevocable, the moment the proposed adoptive family is given custody is when the process of creating affective family bonds begins. Accordingly, the parents’ right to have paternity leave should be granted at this moment, as this will help ensure the minor’s integration into his/her new family. This is only possible through direct contact and face-to-face interaction.
Consequently, it will no longer be appropriate for the EPS to require the Family Court ruling regarding the adoption or the registration of this ruling in the public records. Proof of the official custody transfer of the boy, girl or adolescent issued by the ICBF will be adequate evidence for the adoptive parents to demand their legal right to paternity leave.
The practice of requiring different documents hinders the parents’ ability to be granted paternity leave. Certainly, with a constitutional injunction the paternity leave will be recognized. However, employers and adoptive parents are subject to additional burdens.
In addition, another controversial point is the number of weeks that should be paid to the EPS. There is a discussion about the number of weeks required by contributors. In External Circular 024, 2017, issued by the Health Ministry stipulated that workers shall contribute the same amount pf weeks as the gestation period, this is the nine months prior to the birth. In the case of adoptive parents, it can be interpreted as nine months before obtaining custody of the minor. On the other hand, Law 1822, 2017, stated that the requirement is that the worker contributed during the weeks prior to the paternity leave being granted. This has been interpreted as only two weeks of contributions.
Considering all of the above, if an adoptive parent has not contributed for nine months before obtaining custody of the minor, but has contributed for at least two weeks, there could be grounds for a dispute with the EPS about their right to the paternity leave. If the EPS requests additional documents, aside from the Child Custody Certificate and if not provided by the adoptive parent, the EPS could deny this economic remuneration. If this is the case, a constitutional injunction may be requested for obtaining this right.
All of this presents a significant challenge to all parties involved in paternity leave. Reaching harmony between the regulations, judicial precedents, administrative processes and the variety of entities will allow beneficiaries to get what they are entitled to, and prevent adverse effect in boys, girls, and adolescents being adopted.