(Judgment dated June 11, 2026 – Case No. 17297-2024-02086)

The Criminal Chamber of the Provincial Court of Justice of Pichincha, through its judgment of June 11, 2026, ruled on a constitutional protection action filed against the Ecuadorian Social Security Institute (IESS) and ordered, as a form of economic reparation, the payment of maternity benefits corresponding to 14 weeks, instead of the 12 weeks established under Article 152 of the Ecuadorian Labor Code. The decision is grounded on more favorable international standards and constitutional principles providing enhanced protection of maternity.

1. CASE OVERVIEW

Ms. Mayra Lucía Tirira Rubio, an employee of Corporación SURKUNA, filed a constitutional protection action against the IESS after it refused to recognize and pay maternity benefits for a 14-week maternity leave period, in accordance with Article 4 of the ILO Maternity Protection Convention, 2000 (No. 183).

2. WHY WAS THE CLAIM FILED?

The facts leading to the legal action were as follows:

• On March 4, 2024, the employee requested that the IESS recognize a 14-week paid maternity leave, based on Article 4 of ILO Convention No. 183.
• The employer (Corporación SURKUNA) agreed to cover 25% of the employee’s remuneration for the 14-week period and requested that the IESS cover the remaining 75%.
• The IESS registered a medical certificate covering the period from June 17 to September 8, 2024, totaling 84 days (12 weeks), and informed the employee that maternity benefits would only be paid for that period, pursuant to Article 152 of the Labor Code.
• Following the IESS’s refusal to recognize the additional two weeks, the employee filed a constitutional protection action.

3. IESS’S ARGUMENTS

The IESS primarily argued that:

• ILO Convention No. 183 has not been ratified by Ecuador and therefore is not legally binding.
• Its obligation is limited to Article 152 of the Labor Code, which establishes a 12-week maternity leave.
• Maternity benefits must be paid exclusively in accordance with existing domestic legislation.

4. APPLICABLE CONSTITUTIONAL AND LEGAL FRAMEWORK

The judgment analyzes Articles 417, 424, 425, and 426 of the Ecuadorian Constitution. In particular, Article 426 provides that judges and administrative authorities must directly apply constitutional provisions and international human rights instruments whenever they offer more favorable protection than the Constitution itself, even if the parties do not expressly invoke them. According to the Court’s reasoning, the analysis of more favorable international human rights standards cannot be automatically dismissed solely because an international treaty has not been formally ratified.

According to the Court’s reasoning, the analysis of more favorable international human rights standards cannot be automatically dismissed solely because an international treaty has not been formally ratified. The Chamber relied on ILO Convention No. 183 primarily as a more favorable interpretative standard, without implying that every unratified treaty automatically acquires full legal force within Ecuador’s legal system.

It is important to note that, under a systematic legal analysis, an international treaty not ratified by Ecuador does not automatically attain the normative hierarchy established under Article 425 of the Constitution, nor does it become part of the constitutional framework or override domestic legislation. Nevertheless, the Court used the Convention as an interpretative benchmark to assess the constitutional adequacy of the IESS’s decision.

Meanwhile, Article 152 of the Labor Code continues to establish, as a general rule, 12 weeks of paid maternity leave, except in the specific situations expressly provided by law.

5. THE COURT’S ANALYSIS OF MATERNITY LEAVE

The Chamber did not resolve the dispute solely on the basis of whether Convention No. 183 had been ratified. Instead, it reformulated the legal issue to determine whether, in the presence of a more protective international standard, the IESS could disregard it entirely without providing any constitutional justification.

The Court required a heightened standard of reasoning and reviewed the IESS’s refusal in light of the following constitutional principles:

• Constitutional protection of maternity (Articles 34, 35, 43, 332, 333, and 369 of the Constitution).
• Substantive equality and non-discrimination.
• Reproductive health.
• The pro persona principle.

The Chamber concluded that a merely formalistic response by the IESS—limited to citing Article 152 of the Labor Code without conducting any constitutional analysis—could violate the fundamental rights of a pregnant worker.

6. COURT ORDER – 60-DAY COMPLIANCE PERIOD

As a guarantee of non-repetition, the Court ordered the IESS to amend, within sixty (60) days, its protocols, guidelines, manuals, legal criteria, and internal procedures relating to maternity benefits, taking into account a 14-week maternity leave period.

Specifically, the Court ordered that:

• Any request related to pregnancy, childbirth, postpartum recovery, puerperium, breastfeeding, caregiving, or maternity benefits must be resolved through enhanced reasoning and an express constitutional analysis.
• A mandatory nationwide directive must be issued establishing that no request related to maternity, pregnancy, postpartum recovery, puerperium, breastfeeding, or caregiving may be denied through generic formulas, standardized responses, or isolated references to lower-ranking legal provisions.

Any denial must expressly and reasonably justify why the decision is compatible with the Constitution, the constitutional framework, the pro persona principle, and enhanced maternity protection.

7. ECONOMIC REPARATION

The Court ordered the following remedies in favor of Ms. Mayra Lucía Tirira Rubio:

• Economic reparation: Payment by the IESS of 75% of the employee’s salary corresponding to the additional two (2) weeks required to complete a 14-week maternity leave period.
• Non-economic reparation: Issuance of a public apology by the IESS.

IMPORTANT NOTE FOR EMPLOYERS

The IESS has 60 days from the date of the judgment (June 11, 2026) to adjust its protocols, guidelines, and internal directives in accordance with the Court’s ruling. Employers should closely monitor the criteria adopted by the IESS and assess their potential impact on the administration of maternity-related benefits.

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