Until this past week, new fathers in Brazil got just five days of paid maternity leave from work to help tend for their child. This changed when the Brazilian social security agency held that Lucimar da Silva is entitled to the four months of maternity leave after he and his partner adopted a baby. The court determined that de Silva should receive the same amount of leave that a new mother would receive after giving birth.
De Silva and his partner argued that at least one of them should be granted the same amount of time for maternity leave, four months, as a new mother. The agency hearing the case agreed, as the same parental functions of caring for the new child would be performed by de Silva. An agency spokesman said “However unusual it may seem to grant maternity leave to a male person … this hypothesis is possible when the father takes care of the newborn.”
The Brazil Supreme Court in 2011 held that gay and lesbian persons are entitled to every legal right that a heterosexual person is entitled to. Under this precedent, the social security agency found it to be discriminatory to not grant maternity leave in de Silva’s case. However, the agency’s ruling is not in itself precedential. Each same-sex male couple in the future must individually petition the state to maternity leave. However, lesbian couples are already granted the four month paid maternity leave without the petition requirement.
Regardless of the legal precedential value of this decision, the social precedent is enormous. Granting a male couple maternity leave shows the social and domestic value of same-sex gay couples. It also attests to the fact that same-sex couples can, and are expected to, care for their children in the same way heterosexual couples can. Maternity leave for gay fathers will continue to add to the momentum of equal civil rights for gay and lesbian people in Brazil.