Supreme Court extends maternity leave rules to adoptive mothers
Brazil’s Federal Supreme Court (STF) reconvened Wednesday (23) after suspending one of last week’s sessions and ruled that biological and adoptive mothers must receive equal maternity leave. The court also standardized the rules governing maternity leave in the private and public sectors. The justices, however, rejected a request to allow couples to share maternity and paternity leave.
It was the first case to be concluded in an in-person session since the justices met to vote on whether to open an investigation into Justice Alexandre de Moraes, a proceeding that was suspended. Justice Moraes’s position prevailed, as he was the reporting justice.
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The unanimous ruling applies to leave already in progress and to future leave, starting from Wednesday (23) when the judgment was concluded. The timing limitation avoids a multibillion-real impact on the federal government’s finances.
The ruling guarantees all mothers, whether biological or adoptive, 120 days of leave, which can be extended by an additional 60 days. Leave begins to run from the ninth month of pregnancy, the birth, the hospital discharge of the newborn or the mother—whichever occurs last—the adoption, or the granting of custody for adoption purposes.
According to legal experts, the ruling does not expressly address fathers, whose rights continue to be governed by labor legislation and other court precedents. Under Brazil’s Consolidation of Labor Laws (CLT), an adoptive father is currently entitled to leave on the same terms as an adoptive mother, while in joint adoptions, including those involving two fathers or two mothers, leave is granted to only one of the adoptive parents.
A father raising a biological child alone is expressly entitled to leave only in the event of the mother’s death. These gaps will be narrowed starting in January 2027, when Law No. 15,371/2026 takes effect. A father who adopts a child on his own, or whose child does not have a mother listed on the birth certificate, will become entitled to leave equivalent to maternity leave. In a joint adoption, one parent will receive maternity leave and the other paternity leave.
In the public sector, the STF recognized in 2022 the right of a single father who is a federal employee to maternity leave and will still rule on the case involving couples made up of two men. According to legal experts, by rejecting the sharing of leave between family members, the court reaffirmed that it is up to Congress to redesign Brazil’s parental-leave system.
The STF considered the issue in a direct action of unconstitutionality (ADI 7495) filed by the Prosecutor General’s Office (PGR) in 2023. The action sought to equalize the length of maternity and adoption leave under the CLT and the rules governing federal public employees and members of the armed forces. It also sought to allow couples to share maternity and paternity leave.
The court resumed the case on Wednesday (23) with a vote by Justice Cristiano Zanin, who followed Moraes’s position. Justice Zanin noted, however, that the court needed to determine whether the ruling would apply only to ongoing and future cases. In a filing submitted shortly before the session, the Federal Attorney General’s Office (AGU) supported a 180-day leave period but asked the court to give the ruling “prospective effect,” applying it to benefits already in force and to new grants.
In the filing, the federal government said that, according to information from the Ministry of Planning and Budget (MPO), the financial impact could reach R$37 billion, taking into account the five-year statute of limitations, which would allow claims covering the previous five years.
Following Zanin’s observation, Moraes clarified that the ruling should apply to future cases and leave already in progress as of Wednesday (23), but not to leave periods that had already ended. The case had been suspended since last week.
At that time, Moraes voted to equalize maternity leave and adoption leave but rejected the request to allow couples to share leave, arguing that there was no legal provision for such an arrangement. Justice Nunes Marques said, “this is one of the cases of great importance to Brazilian society.” At Wednesday’s session (23), he also suggested that the ruling should apply to leave already in progress and future leave.
According to Fernanda Perregil, a partner at law firm WFaria Advogados, the decision’s impact will initially be much greater on employment regimes that are not covered by the CLT. “The CLT already gives biological and adoptive mothers equal rights for maternity leave,” she noted.
The lawyer noted, however, that the ruling also affects the private sector by standardizing leave for adoptive mothers and the starting point for leave based on the hospital discharge of either the mother or the child, whichever occurs later. The Supreme Court had already issued a ruling on the issue, she said, in ADI 6327.
Labor lawyer Guilherme Ghilardi Cavini of Innocenti Advogados said much of what the court decided was already standard practice in the private sector, but not in the public sector. For Cavini, the issue requiring attention is the additional 60 days, which are currently available only to employees of companies that participate in the Empresa Cidadã program. The lawyer considers the ruling to guarantee 180 days of leave. “The ruling will need to clarify who will bear the cost of the additional 60 days, which is currently covered by companies participating in the program,” he said.
Lawyer Giovanni Anderlini Rodrigues da Cunha said the additional 60 days are not automatically guaranteed to the entire private sector and remain subject to the circumstances established by law. “We will still need to wait for the publication of the full ruling to fully understand the scope of the court’s decision and any other practical consequences, particularly how the ruling will apply to different types of employment relationships and to leave already in progress,” he said.
In a statement, the AGU said the general rule currently provides for 120 days of leave, with the possibility of extending it to 180 days for a limited group of beneficiaries, including federal civil servants and employees covered by the CLT who work for companies participating in the Empresa Cidadã program, which currently covers fewer than 10% of beneficiaries. According to the AGU, with the court’s ruling, “the 180-day protection period will be guaranteed to all mothers.” However, the STF’s ruling refers to 120 days of leave, extendable by an additional 60 days.
Justice Cristiano Zanin
ROSINEI COUTINHO/STF/STF
