Non-pregnant mother in same-sex union guaranteed right to maternity leave by STF
- Piva Advogados
- Mar 15, 2024
- 2 min read
On March 13, 2024, the Federal Supreme Court (STF) ruled that a non-pregnant mother in a same-sex union is entitled to 180 days of maternity leave if her partner has not taken advantage of this benefit. This decision, based on the Federal Constitution, aims to protect not only the mother, but also the relationship between mother and child, prioritizing the well-being, development and best interests of the child.
The case in question involved a couple of women who resorted to the process of artificial insemination, in which one of them provided the egg and the other carried the child. The STF's decision ensured the right to maternity leave for the woman who provided the egg, even in the face of an appeal by the municipality of São Bernardo do Campo (SP).
The vote of the rapporteur, Justice Luiz Fux, prevailed, emphasizing that the granting of leave is independent of the origin of the filiation and the family configuration. He stressed that non-pregnant mothers play fundamental roles after the formation of the family bond and that the Constitution recognizes the plurality of family arrangements.
However, there was a dissent, led by Justice Alexandre de Moraes, who proposed that both non-pregnant mothers should be entitled to an equal benefit, equating maternity leave with 120 days, as established for adoption by same-sex couples.
In the context of the general repercussion, the STF decision established that the non-pregnant mother in a same-sex union is entitled to maternity leave, with the exception that if the partner has already taken advantage of the benefit, the non-pregnant mother will be entitled to leave for the same period as paternity leave, which is five days.
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Translated with DeepL.com (free version)
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