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Licenses for pregnant and adopting public servants can not be different, decides STF

The bench of the Brazilian Federal Supreme Court (STF), by majority, decided that the legislation can not predict for different time frames for granting maternity leave for pregnant and adopting public servants. At the session on Thursday (10), the ministers approved the Extraordinary Appeal 778889, with general repercussion acknowledged.

In this case, a federal public servant who obtained provisional custody for the purpose of adopting a child older than one year of age applied to the public administration for the adoptive license. On the basis of the legislation in force, maternity leave of 30 days was granted, extended by fifteen days.

The servant filed a writ of mandamus in order to secure her 120-day license period, on the grounds that this is the constitutional provision for the pregnant woman. It also requested the extension of this license for another 60 days, as provided for in Law 11,770 / 2008. The two decisions of the Federal Regional Court of the 5th Region were unfavorable to the servant on the grounds that the rights of the adopting mother are different from the rights of the pregnant mother.

In the STF, the applicant claims that the Federal Constitution, in establishing the minimum period of 120 days of maternity leave, does not make any distinction or distinction between biological and adoptive maternity. It also maintains that the constitutional text, in its article 227, paragraph 6, expressly equates biological and adoptive children.

Vote of the rapporteur

At the beginning of his vote, Justice Luís Roberto Barroso, rapporteur of the appeal, made a statement about changes in legislation relevant to the subject in recent years. He highlighted, among other points, the full equality of children established in article 227, paragraph 6, and the right to maternity leave of 120 days to the pregnant woman, provided for in article 7, paragraph XVIII, of the Charter of the Republic.

In the evolution of legislation, the Justice pointed out that, unlike public administration, private initiative, by forecast in the Consolidation of Labor Laws (CLT), provides the same time of maternity leave for biological mothers and adopters. "In the public service today it is discriminated between pregnant mother and adoptive mother and because of the age of the adopted child," he said.

The justice also presented research results on the framework of the adoption system that says older children are rejected by most of the couples wish to adopt. He also pointed out that the longer hospitalization period, more difficult it is for the children to adapt to the adoptive family, which makes the dedication and availability of adoptive parents even more necessary. "So nothing in the reality of adoptions, much less in the reality of late adoptions indicates that older children need less care or less attention than babies. It is just the opposite, "explained the rapporteur.

For Barroso, the more burdensome treatment given to the older adopted violates the principle of proportionality in that it creates more difficulty for those who need it most. "If the greater age is the child's difficulty adapting to the new family and if the most determining factor of the adaptation is the availability of time from the parents to the child, it is not possible to grant a minor maternity leave for the adoption case of older children, "he said.

The Justice approved the appeal to recognize, in this case, the applicant's right to the remaining term of the license, so that the total time of the benefit, including the period already enjoyed, is 180 days of paid service ( The 120 days provided for in article 7 of the CF plus the 60 days of extension provided for in Law 11,770 / 2008).

In their vote, the following thesis was established, for the purpose of applying the general repercussion: "The periods of the adopting license can not be less than the term of the maternity leave, the same valid for the respective extensions. Regarding the adopting license, it is not possible to set different deadlines depending on the age of the adopted child. "


Justice Marco Aurélio presented a dissenting vote by the rapporteur. According to the Justice Marco Aurélio the granting of the appeal presupposes transgression by the court of origin to the Charter of the Republic. For the justicer, the constitutional right to paid leave is to the woman who becomes pregnant and will become a parturient and not to the adoptive mother. "If we go to the Federal Charter, we will see that the pregnant woman is being considered for leave. Therefore, the constitutional text presupposes gestation. "

"I am not facing a breach of the Federal Constitution, in which the court of origin has established that there would be no right to increase the period of leave to the adopter," Justice Marco Aurélio said.


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