Court Rules on Maternity Leave in Same-Sex Relationship

Employees in Brazil are granted a variety of benefits. One such benefit - the right to take time off to care for a newborn child - was the focus of a recent judicial decision. Brazil’s highest court, the Supremo Tribunal Federal, or STF, considered whether the non-gestational parent in a female same-sex relationship could claim maternity leave.

Brazil’s labor statute, known as CLT (Consolidação das Leis do Trabalho), grants mothers 120 days of maternity leave. Fathers, on the other hand, get just five days of paternity leave. But what the law doesn’t address is what happens when there are two mothers. Do both mothers get 120 days off from work?

After nearly five years of litigation, Brazil’s Supreme Court finally weighed in on the issue. The court held that only one mother could take advantage of the right to maternity leave. The other mother - no matter whether she’s the gestational or non-gestational parent - would have the right to the equivalent of paternity leave.

The decision, however, leaves plenty of questions unanswered. For example, what rights should be afforded to relationships where there are two fathers? If a mother is a freelancer and doesn’t receive maternity leave, could the father take the equivalent of maternity leave? With a rise in same-sex relationships, employers and the courts are bound to confront these and other questions.

It’s important that foreign owners of Brazilian companies are familiar with Brazilian employment law and the rights afforded to CLT employees. Perhaps they’ll find that an independent contractor relationship would better suit their needs.