Brazil's Supreme Federal Court (STF), the country's highest constitutional court, ruled unanimously on Wednesday (23) that adoptive mothers and biological mothers must receive the same maternity leave: 120 days of paid leave, extendable by 60 days. The decision covers private-sector workers under the CLT, Brazil's consolidated labor code, and civil servants under statutory regimes. The case's rapporteur, Justice Alexandre de Moraes, was followed by all ten other justices.
The trial, which began on September 16, ended on Wednesday. The ruling applies to new leaves and to those already underway on September 23; completed leaves are not affected. The 120 days will be counted from the ninth month of pregnancy, the birth, the adoption, the granting of custody for adoption purposes, or the hospital discharge of the mother or the newborn, whichever comes last. The justices also barred discrimination in granting the benefit based on the mother's type of employment.
The old rule and the prosecutors' case
Under federal civil service rules, a biological mother had 120 days of paid leave, while an adoptive mother had 90 days if the child was up to one year old and only 30 days if the child was older. The CLT, which governs private employment, had already equalized both cases. The case reached the court through an action filed by the Prosecutor General's Office (PGR), which asked the justices to declare those rules incompatible with the Constitution and to bind both the judiciary and the public administration.
According to the PGR, a 2023 Supreme Court ruling had already held that adoptive and biological mothers cannot receive different leave periods, citing principles such as human dignity, equality between biological and adopted children, and the best interest of the child. In the prosecutors' view, that precedent served only as guidance for judicial bodies, did not suspend contrary laws, and the distinction continued in practice.
"It is therefore fitting to bring this direct action, which seeks not only to set aside the application of norms that currently amount to discriminatory treatment in the granting of parental leave, but also to establish, on an objective legal plane, the thesis that the system of parental protection must be subject to a uniform legal regime, regardless of the labor relationship of the category that benefits from it," the PGR argued.
How the trial unfolded
When the trial opened on September 16, Moraes was joined by Justices Cármen Lúcia, Flávio Dino and Dias Toffoli. On Wednesday, Cristiano Zanin, André Mendonça, Kassio Nunes Marques, Luiz Fux, Gilmar Mendes and Chief Justice Edson Fachin followed the rapporteur. "If all are children, the mother is the mother of all, of natural, biological, adopted children, so maternity leave must be the same for everyone," Moraes said, according to G1.
Justice Kassio Nunes Marques said the legal regime "may regulate countless aspects of the employment or civil service relationship, but cannot alter the intensity of the constitutional protection owed to motherhood and childhood". "The child does not need more or less care depending on whether her mother is an employee, a civil servant or a member of the military," he added. Cármen Lúcia said that "there is only one mother, and every child is unique to us". The court rejected only one of the PGR's requests, the sharing of parental leave among members of the family unit; according to CNN Brasil, the justices held that Congress should regulate that division. With the trial closed, the case now goes to the drafting of the formal ruling, to be published in the court's electronic gazette, with no date set yet.