The Federal Constitution guarantees, in its Article 7, XVIII, maternity leave, without loss of employment or salary, for one hundred and twenty days. Generally, there is no doubt about the application of this right. However, what happens when this right is exercised in a same-sex union between two women?
This was precisely the subject of an extraordinary appeal with general repercussions submitted to the Supreme Federal Court for analysis, which resulted in the following ruling: “A mother who is a civil servant or a non-pregnant worker in a same-sex union is entitled to maternity leave. If her partner has used the benefit, she will be entitled to leave for a period equivalent to that of paternity leave.”
In the case in question, the women had been living in a stable union since 2007 and in 2017 they became mothers after an artificial insemination process, through which one of the women donated an egg for implantation of the embryo in her partner.
The pregnant woman was self-employed and couldn’t afford to stop working to care for the baby, which is why the non-pregnant mother, a public servant, sought legal action to guarantee her right to maternity leave. According to the Supreme Federal Court (STF), both public servants and private sector workers in same-sex relationships have the right to maternity leave. The Supreme Court emphasized that this guarantee aims to protect not only motherhood but also the interests of the newborn child and the various family configurations.
