The Federal Supreme Court (STF) decided this Wednesday (23), unanimously, to equalize the rights of adoptive and biological mothers in relation to maternity leave.
The trial began last week and concluded this Wednesday.
Minister Alexandre de Moraes, rapporteur of the action presented by the Attorney General's Office (PGR), was accompanied by the ministers to establish that all mothers, whether biological or adoptive, will have the right to maternity leave with identical content: paid leave of 120 days, extendable for another 60 days.
The period will be counted from the 9th month of pregnancy, birth, 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 beneficiary's employment or functional relationship, whether CLT or statutory.
The decision applies to new licenses and those that are already in progress, not covering those that have already ended.
Another decision within the trial was to prohibit discrimination in the granting of leave based on the mother's employment relationship.
"In my opinion, the legal, CLT, military or other statutory regime can regulate numerous aspects of the employment or functional relationship, but cannot change the intensity of constitutional protection due to motherhood and childhood. The child does not need more or less care depending on whether their mother is an employee, civil servant or military", stated minister Kassio Nunes Marques.
Moraes only denied one request from the PGR, which provided for the sharing of parental leave among family members.
Pregnant woman. — Photo: Illustrative image/Disclosure
Discrimination
Currently, biological mothers who have a statutory employment contract at the federal level have 120 days of paid leave.
Adopting 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.
“There is neither constitutionality in favor of adoptive motherhood nor a second discrimination in relation to adoptive motherhood, the period of removal is graduated according to the age of the adopted child”, stated Moraes.
The Consolidation of Labor Laws (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 understood that this distinction violates the Constitution and the PGR calls for the definitive uniformity of the rules for all categories.
Precedents
In 2023, the Supreme Court decided that it is not possible to discriminate between the length of maternity leave granted to biological mothers and adopting mothers and cited principles of human dignity, equality between biological and adopted children, the doctrine of full protection and the principles of priority and the best interests of the child.
However, the PGR maintains that the decision served as a basis only for bodies of the Judiciary and did not reach the public administration. Therefore, the decision did not suspend the effectiveness of laws to the contrary and discrimination continued to occur.
The action requests the declaration of incompatibility of the rules with the Constitution in order to bind both bodies of the Judiciary and the public administration.
“It is understood, therefore, that this direct action is appropriate, which aims not only to remove the application of normative provisions that, currently, end up configuring discriminatory treatment regarding the granting of parental leave, but also to establish in the legal-objective plan the thesis that the parental protection system must be subject to a uniform legal regime, regardless of the employment relationship of the category that benefits from it”, argues the PGR.
Last week, Moraes had already voted and said that “if everyone is a child, the mother is the mother of everyone, natural, biological and adopted children, then maternity leave must be the same for everyone”.
Ministers Cármen Lúcia, Flávio Dino and Dias Toffoli followed the understanding.
This Wednesday, ministers Cristiano Zanin, André Mendonça, Kássio Nunes Marques, Luiz Fux, Gilmar Mendes and the president, Edson Fachin, followed the understanding.
"There is only one mother and every child is unique to us. The child is a child and that's it and this inequality could result in the person feeling different too, when the person tells them and everything", stated minister Cármen Lúcia.
