STF equalizes maternity leave for adoptive mothers
The STF concluded the judgment and equalized maternity leave for biological and adoptive mothers. The unanimous decision guarantees 120 days of leave, extendable by another 60, regardless of the employment relationship. The measure applies to new leaves and those already in progress.
The Supremo Tribunal Federal (STF) decided on Wednesday (23), unanimously, to equalize the rights of adoptive and biological mothers in relation to maternity leave. The trial began last week and ended on Wednesday. The decision follows an action by the Attorney General’s Office (PGR) and establishes that all mothers will have the right to paid leave of 120 days, which can be extended for another 60 days.
Unanimous decision encloses historical distinction
Minister Alexandre de Moraes, rapporteur of the action, was accompanied by the other ministers to fix that all mothers, whether biological or adoptive, will be entitled to maternity leave of the same content: paid leave of 120 days, extendable for another 60 days.
The period will be counted from the 9th month of pregnancy, childbirth, adoption or obtaining custody for adoption purposes, as well as the hospital discharge of the newborn or the mother — whichever occurs last — regardless of the nature of the work or functional bond of the beneficiary, whether CLT or statutory.
The decision is valid for new licenses and for those that are already in progress, not reaching those that have already finished. Another decision within the trial was to prohibit discrimination in the granting of the leave based on the labor bond of the mother. With this, the STF seeks to uniformize the treatment given to motherhood in all spheres.
Minister highlights constitutional protection for children
Minister Kassio Nunes Marques stressed that the legal regime – celetista, statutory, military or other – can discipline numerous aspects of the working or functional relationship, but it can not change the intensity of constitutional protection due to motherhood and childhood. “The child does not need more or less care as his mother is employed, servant or military,” she said.
Moraes denied only one request from the PGR, which provided for the sharing of parental leave among the members of the family. The source did not elaborate on the reasons for the refusal, but the decision remains focused on the match between biological and adoptive mothers.
Current differences between categories
Currently, biological mothers who have a statutory work relationship in the federal sphere have 120 days of paid leave. The adoptive mothers have 90 days of leave if the child is up to one year old and 30 days if the child is over 1 year old. The CLT already equates biological mothers and adopters for the purposes of maternity leave, while some statutory laws still maintain formal differences for adopters.
The STF has been understanding that this distinction violates the Constitution and the PGR calls for the definitive uniformization of the rules for all categories. In 2023, the Supreme Court ruled that it is not possible to discriminate against the time of maternity leave granted to the biological mother and the adoptive mother and cited principles of human dignity, equality between biological and adopted children, the doctrine of integral protection and the principles of priority and the best interest of the child.
PGR points to persistence of discrimination
However, the PGR maintains that the 2023 decision served as the basis only for bodies of the Judiciary and did not reach the public administration. Therefore, the decision did not suspend the effectiveness of the laws to the contrary and discrimination continued to occur. The action calls for the declaration of incompatibility of the norms with the Constitution to, with this, bind both bodies of the Judiciary and the public administration.
With the conclusion of the trial, the STF sets a milestone for the protection of adoptive motherhood across the country. The decision must impact federal, state and municipal public servants, as well as workers governed by specific statutes, ensuring isonomy in the care of children.
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