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Court Recognizes That Maternity Leave Can Be Granted to Father in Case of Surrogacy, Expanding Protection for the Child.
The maternity leave has returned to the center of legal debate following a decision by the Federal Court that reinforces the idea that the benefit is not exclusively linked to the figure of the woman.
In a recent ruling, the 1st Federal Court of Capão da Canoa (RS) ensured the payment of the benefit to a father whose daughter was born through surrogacy, expanding the interpretation of social protection provided in Brazilian legislation.
The case analyzed involves a man who is part of a stable same-sex union and who had a daughter conceived through gestational surrogacy.
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The child has a birth certificate with dual parentage, which proves the legal and familial bond.
Upon seeking the court, the father argued that time off from work, with financial support, is essential to ensure the initial care of his daughter, especially in the first months of life.
The decision was issued by Judge Oscar Valente Cardoso, who recognized the absence of a specific rule for situations like this.
Nevertheless, the magistrate concluded that the case should receive treatment similar to that of adoption, a modality already covered by social security legislation for the purpose of granting maternity leave.
Maternity Leave: Social Protection Is Not Limited to Gestation
In the reasoning of the ruling, the judge emphasized that the traditional understanding of maternity leave, tied only to the pregnant woman, no longer reflects the current legal reality.
According to him, this reading has already been surpassed by the legislator, who extended the benefit to adoptive fathers and to fathers who assume the sole responsibility for raising the child in the event of the mother’s death.
For the magistrate, these hypotheses demonstrate that the focus of the benefit is not restricted to the gestational process, but rather to the care of the child and the preservation of the family structure.
Thus, maternity leave is understood as a tool for childhood protection, rather than a right conditioned to gender.
In a section of the ruling, the judge states that this expansion of the benefit’s scope constitutes, in practice, a kind of paternity leave, even though this nomenclature is not explicitly provided for in the Constitution.
Legal Equivalence Ensures Equality of Rights
Another relevant point of the judgment was the equivalence of the situation to civil paternity arising from adoption.
In the magistrate’s assessment, both in adoption and in surrogacy, the father fully assumes the legal and emotional responsibilities from the child’s birth.
Denial of maternity leave in these cases, according to the adopted understanding, would mean creating an unjustified differentiation between families and, mainly, between children.
The judge highlighted that the legal system must prioritize the best interest of the minor, a principle that guides decisions in family law and in the social security field.
Legal Advocacy Views Maternity Leave Decision as Legal Milestone
Attorney Luís Gustavo Nicoli, from the Nicoli Sociedade de Advogados law firm, responsible for defending the plaintiff, evaluated that the decision represents an important advancement.
For him, the ruling makes it clear that maternity leave cannot be treated as a privilege restricted to the mother woman.
In the attorney’s view, the recognition of the right reinforces that the benefit exists to ensure protection for the child and the family, including in contexts of male same-sex families and in cases of surrogacy.
According to Nicoli, the ruling on maternity leave also fills a regulatory gap that has not yet been addressed by the legislator.
The decision aligns with a line already adopted by institutions such as the Supreme Federal Court (STF) and the National Justice Council (CNJ).
In recent years, these institutions have recognized the expansion of parental leave for single fathers, same-sex couples, and situations where the mother is not the gestator.
This movement demonstrates a Judiciary adaptation to social transformations and new family models, increasingly present in the country.
The priority in these cases has been to ensure equality of rights and comprehensive protection for the child, regardless of family configuration.
With information from the website Consultor Jurídico.
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