Brazil's Supreme Federal Court (STF) began judging a case on Wednesday (Sept. 16) that could guarantee adoptive mothers the same maternity leave as biological mothers. The rapporteur, Justice Alexandre de Moraes, voted to give every mother the same paid leave of 120 days, extendable by another 60, and was joined by Justices Dias Toffoli, Cármen Lúcia and Flávio Dino. The session was suspended because of the hour and the judgment will resume next week, according to the news site g1.
The lawsuit, case ADI 7.495, was filed by the Attorney General's Office (PGR) against rules that treat mothers differently according to how motherhood came about and the type of employment, covering private-sector workers, civil and military public servants and members of the public prosecution service. Today, a biological mother with a federal statutory employment contract has 120 days of paid leave, while an adoptive mother has 90 days if the child is up to one year old and 30 days if the child is older, g1 reports. The CLT, the labor code that governs private-sector employment in Brazil, already treats both cases alike, but some statutes for public employees keep formal differences.
Under the rapporteur's vote, every mother would have a leave of identical content, whether governed by the CLT or by a public-sector statute. The period would run from the ninth month of pregnancy, childbirth, adoption or the granting of custody for adoption purposes and, in hospitalization cases, from the hospital discharge of the mother or the newborn. Moraes said maternity leave is a right of the children as much as of the woman. "The Constitution protects these two people," he said.
"If all are children, the mother is the mother of all, of natural, biological, adoptive children, so maternity leave must be the same for all."
Moraes denied only one of the PGR's requests, the sharing of parental leave among the members of the family unit. On that point he followed the court's precedents and said the division of leave periods belongs to Congress, according to the legal news service Migalhas. He also held unconstitutional the reduction of leave according to the adopted child's age, a criterion he called unreasonable and one that can make it even harder to adopt older children. Justice Cármen Lúcia said the rapporteur's reading fits the Constitution better: "There is only one mother, and every child is unique to us. A child is a child, period."
Case timeline
In 2023 the STF ruled that the length of maternity leave cannot differ between a biological mother and an adoptive mother, citing human dignity, equality between biological and adopted children and the best interest of the child. The PGR argues, however, that the ruling guided only judicial bodies and never reached the public administration, so the discrimination continued. ADI 7.495 asks the court to declare the contrary rules incompatible with the Constitution, binding both the judiciary and the administration. The case started in the court's virtual plenary, where Moraes and Dino had already voted to end the distinction, and moved to the in-person plenary after the rapporteur himself asked to pull it from the virtual docket. In oral arguments, public defender Gustavo Zortea, for the Federal Public Defender's Office (DPU), argued for 120 days extendable by 60 for all beneficiaries and for extending the protection to a father who raises a child alone.
First vote since the court's crisis
The vote came one day after an extraordinary session in which the court weighed the case that involves Moraes himself, a session marked by clashes between justices and described by members of the court as "shameful", according to g1. It ended without a decision on whether to join or keep separate the cases of Moraes and Justice André Mendonça, after Dino asked for time to review the files. Moraes was absent when Wednesday's session opened, arrived later, asked for a review period in another case on the docket and then delivered his vote in ADI 7.495, according to g1's live coverage. It was his first vote on the bench since Tuesday's session (Sept. 15).
Moraes, Toffoli, Cármen Lúcia and Dino now stand at four votes for equalization, with no votes against recorded before the suspension. Six justices have yet to vote: Edson Fachin, the court's president, Gilmar Mendes, Fux, Kassio Nunes Marques, André Mendonça and Zanin, all present at the session. The judgment resumes next week, with no exact date set in the coverage consulted.