STF authorizes a 180-day leave to a single parent server

The Federal Supreme Court (STF) decided this Thursday (12), unanimously, that it is possible to grant a benefit of 180 days equivalent to maternity leave to a public servant who is a single father.

The case’s rapporteur, Alexandre de Moraes, and ministers André Mendonça, Nunes Marques, Edson Fachin, Luís Roberto Barroso, Cármen Lúcia, Ricardo Lewandowski, Gilmar Mendes and Luiz Fux voted in favor of the measure —Rosa Weber did not participate in the session.

The case that the Supreme analyzed is a medical expert from the INSS who is the father of twin children generated through in vitro fertilization and surrogacy.

The babies, who were born in the state of Massachusetts (USA), have dual nationality and were registered only in the father’s name.

The case reached the court because the INSS appealed the decision of the TRF-3 (Federal Regional Court of the 3rd Region) that allowed the license. The trial of the Supreme started this Wednesday (11) and continued this Thursday.

The INSS argued that it is only possible to grant benefits provided for by law, which is not the case with paternity leave of 180 days.

But the court denied the agency’s request. “Our jurisprudence began to legitimize the new family configurations, always with the aim of fully protecting children and adolescents”, said Moraes, in his decision.

According to him, it is not constitutional that a public servant who is a single parent does not have the same rights as maternity leave guaranteed to women.

Mendonça, according to the voter, said that nowadays the issue of maternity leave has gained new contours and “the most appropriate view is to interpret these leaves, both maternity and paternity, not as a right of the father or mother, but as a way of fulfilling the duties of parents towards their children and the upbringing of those children”.

Minister Edson Fachin, when voting, criticized the INSS’s claims to deny the license.

The Attorney General of the Republic, Augusto Aras, was also in favor of granting the license to the server. According to him, “it is a child’s right, with absolute priority, to have the presence of their parents, who must provide them with care, broad development and family integration”.

“If the newborn does not have the figure of the mother, it is even more justified to ensure the presence of the father”, he said.

The lawyer of the expert who joined the case, Biovane Ribeiro, said that the salary and maternity leave are intended to protect the child and the family nucleus, and it is possible to grant them by analogy.