When a baby is born in a same-sex union, who is entitled to maternity/paternity leave?

An issue of significant social and legal interest is the right to maternity/paternity leave for couples in same-sex unions, which is frequently discussed in discussion forums and social media groups.

We know that positive legislation does not always keep up with the speed of social changes, and, from time to time, family law, social security, and others, face issues that have not yet been resolved, which reach the STF. This is the case of some contemporary family compositions, such as, for example, couples of women or couples of men in same-sex relationships who use assisted reproduction and artificial insemination to create a child. The case becomes even more complicated if a woman becomes pregnant with her spouse's egg. Which mother will be entitled to maternity leave?

Jurisprudence indicates that the mother who was pregnant is entitled to a period of leave of 4 to 6 months, with the other mother who was not pregnant being able to request leave for 5 days with the possibility of extension for a further 15 days.

The important thing is to understand that in this case, if you are insured with the INSS, the longer license can only be applicable to one of the couple as a result of the birth that occurred. Thus, if the mother who gave birth is self-employed, and the mother who did not give birth (but had her egg fertilized) is, for example, an INSS insured person or a public employee (in both cases with the right to a longer leave), it is possible to sue in court for the the latter's right to extended maternity leave, in order to be able to enjoy the right to this guarantee, since his wife will not be able to enjoy this benefit as she needs to return to her professional activities immediately after giving birth.

In this sense, we have the Extraordinary Appeal (RE 1.211.446), where Minister Luiz Fux translated the sentence of the Court of Justice of the State of São Paulo, which recorded: “The origin of the right to maternity leave finds reasons in post- childbirth such as breastfeeding or the physical and psychological recovery of the mother, but it is also a right granted due to the fact that it enables family life and care for the child. Its source is the full interaction with the child during the first months of life, constituting a protection for motherhood and enabling the care and support of the child in the initial stage of their life. Regardless of the origin of affiliation.”

Min. Fux and the Plenary concluded that it had a general repercussion as it referred to the superior principle of maximizing the fundamental rights of children, as well as mothers, in light of the new family concepts present in our society. In this specific case, an injunction was granted and a trial will be scheduled.

Another example is same-sex couples, including men, who are expecting twins, and will need both mothers/fathers to care for the babies, thus requiring double maternity/paternity leave.

As stated above, these are topics that, however, have not yet been approved by Brazilian laws. Even so, it is possible to provoke the judiciary to respond in view of the gradual advancement of jurisprudence, given that in some cases the sentences are favorable and in others, in the majority, they are not.

Although controversial, the general repercussion will affect many pending cases. The Attorney General's Office decided to dismiss the appeal and recommended the establishment of two theses for other cases that deal or will deal with the same topic: one to the effect that it is possible to grant maternity leave to non-pregnant mothers in a stable same-sex union , whose partner became pregnant after an artificial insemination procedure; and the second to prohibit the granting of maternity leave in duplicate within the same family entity, guaranteeing one of them a benefit similar to paternity leave.