STF allows maternity leave for non-pregnant mothers in same-sex unions

The Federal Supreme Court (STF) decided this Wednesday (13) that non-pregnant mothers in a stable same-sex union will be entitled to leave after the birth of their child. The ministers established that a non-pregnant mother may have access to maternity leave of at least 120 days if her partner has not used the benefit.

Otherwise, the non-pregnant mother will be entitled to a period of 5 days similar to paternity leave. As a result, both will not have the same license period. The judgment has general repercussions. Therefore, the thesis established by the Court should be applied in similar cases in the lower courts of the Judiciary.

“A mother who is a civil servant or a non-pregnant worker in a same-sex union has the right to take maternity leave. If the partner has used the benefit, she will be entitled to leave for a period equivalent to paternity leave”, says the winning thesis prepared by the rapporteur, minister Luiz Fux.

Understand the case judged by the STF

The STF judges an appeal filed by the municipality of São Bernardo do Campo (SP) against a decision by the São Paulo Court, which granted 180 days of maternity leave to a municipal employee. The pregnancy occurred after an artificial insemination procedure in which the server’s egg was fertilized and implanted in her partner.

The employee asked the municipality to grant the 180-day maternity leave provided for in local legislation, but the request was denied. According to the Supreme Court, the server took legal action alleging, among other points, that the child is part of a family made up of two mothers and, if the mother who gave birth to the baby is unable to stay at home, as she is autonomous, the second has the right the constitutional guarantee of maternity leave.

The first instance accepted the request and the sentence was upheld by the Appeal Panel of the Special Public Finance Court. The municipality sued the STF arguing that there is no legal provision for granting maternity leave in the situation addressed in the case.

Wishes

Fux stated that, despite not being expressed in the law, the Supreme Court must guarantee constitutional compliance with child protection, informed the Brazil Agency. For the minister, non-pregnant mothers also have the right to leave. “The license is also intended to protect adoptive mothers and non-pregnant mothers in same-sex unions, who, despite not experiencing the typical changes of pregnancy, bear all the other roles and tasks that fall to them after the formation of the new family bond” , said Fux.

Minister Alexandre de Moraes opened a divergence and considered that it was not possible to establish a differentiation between the two women. “The Constitution established greater leave for mothers, envisaging the condition of women. If both are women, both are mothers, is the Supreme Court going to say one can and the other is equating paternity leave? We are replicating the model traditional, man and woman”, he stated.

Moraes’ understanding was followed by ministers Dias Toffoli and Cármen Lúcia. In relation to the thesis, all three were defeated. The other ministers supported the rapporteur’s proposal.