Recognition of maternity in surrogacy case

For surrogacy, should be applied the same standards in maternity adoption

March 31, 2014

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In a past article talked about the general rules applicable to cases of surrogacy pregnancies. In this it was determined that whoever receives the baby, should be considered as the biological mother and therefore receives the same rights as an adoptive mother: she will have too the 14 weeks of maternity leave, like the rest paid for an hour breastfeeding, as provided in Article 238 of the Labour Code.

Consequently, people have sent us several questions that were needed to respond on the basis of depth and breadth in the article. This is the opportunity to answer some of these questions.

One of these is on when the recognition of maternity leave by the employer must be determined. Since this is a special case, several answers to this question can be considered, in principle, there may be apparent. We’ll answer it based on what has been said by the case law and the doctrine of granting license adoptive mother or father, for reasons already explained above.

Joint External Circular No 00013 of 2012, issued by the Ministry of Health, talks about this topic:

"D. License for the adoptive mother or father: for purposes of approval and recognition of the license to the adoptive mother or father, the delivery birth shall be treated as the official surrender of the child to be adopted, in accordance with the provisions of section 1 of Act 1468 of 2011, amending Article 236 of the Labor Code.

In the case of adoption of two children or more, the adoptive mother or father may receive the benefit of the two (2) additional weeks referred to in paragraph 5 of Article 236 of the Labor Code, as amended by Article 1 of a Law 1468 of 2011 (multiple births), a situation in which it is understood that the official presentation of minors takes place the same day".

To implement this concept in surrogacy simply shall exclude the man, but everything is applicable to the particular case.

In practical terms, it must verify that in the birth certificate of the child, mother appears as the woman who gave the ovum to the gestation of the fetus, means the biological mother. It is the obligation of the employer granting recognition of maternity leave.

As this very particular case, it has been great reluctance by the EPS for the recognition of maternity leave. However it is necessary to clarify that, despite this, the administrative process that is filled between the employer and the EPS, should not affect the terms and/or conditions upon recognizing maternity leave, because the employer must proceed its recognition and subsequent thereto will be made by the respective procedure of recovery to the EPS.

The company is required to proceed to the recognition of maternity leave of the employee, in order to anticipate a possible future legal claims related to non-recognition of the benefit, which is in the nature of inalienable and enjoying special protection by the state.

Especially if we take into account the latest rulings of the Constitutional Court (SU 070, 2013), with the understanding that maternity leave granted by the labor law, is not waivable or reconcile right, since with such actions infringe the rights of the child themselves.

The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoints of Activo Legal Ltda.