In one heteronormative society, It is difficult to think about how laws apply to homosexual people.
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It is obvious that, when a straight couple has a child, the woman spends between 120 and 180 days away from work and the father between five and twenty.
And how does the legislation apply to couples made up of two men or two women?
"Our legislation still does not adequately contemplate the diversity of possibilities of reproductive techniques and families today. We still need a broad reform of legislation capable of dealing with these situations to bring more legal security to couples", explains the lawyer and rights activist humans Renan Quinalha.
However, what explains Márcia Denmark, coordinator of the Innocenti Advogados office, director of the São Paulo Lawyers Institute and professor at PUC-SP, the Federal Constitution guarantees the right to family in a generic way, it does not mention men and women.
There are different hypothetical situations that could happen to same-sex couples who have children. In relation to a lesbian couple, one of the women becomes pregnant. Does the other also have maternity leave? Márcia explains that under the INSS this is not possible and the woman who did not have a child is entitled to the equivalent of 'paternity leave'. On the other hand, it is known that the company may allow a mother who has not become pregnant to stay off work for longer.
In the case of two women who adopt a child, only one of them is entitled to maternity leave. "Homosexual couples have exactly the same family and inheritance rights as heterosexual couples by decision of the Federal Supreme Court in 2011. Thus, a couple of lesbian adopters, both of whom are employees contracted and governed by the CLT, will be able to claim the right to maternity leave in terms of article 392-A of this legal diploma, as amended by Law 12.873 of 2013. It establishes that the adopting mother will have the same right to maternity leave as the pregnant mother", explains Renan.
Paragraph 5 of the same article clarifies that "adoption or joint legal custody will result in the granting of maternity leave to only one of the adopters or guardians who is an employee or employee". But, in the same way as in the previous hypothesis, if the two mothers work in different companies, they can both get licenses.
In cases of adopting men, the situation is the same. It is important to emphasize that in all cases the laws only apply in this way if both parties of the couple are employed under the CLT regime.
The "surrogacy" situation is more delicate in Brazil. Renan explains that there is still no regulation for "surrogate motherhood". For the lawyer, based on a systematic reading of the legal provisions, the pregnant woman has maternity leave and so does one of the future parents.
Renan assesses that there is still a lot of prejudice on the part of companies in evaluating atypical cases, often due to lack of knowledge. "The human resources and legal sectors need to seek information and always follow the most up-to-date decisions on these topics, which end up serving as precedents in the Judiciary to guide companies' internal policies", she says.
Márcia, on the other hand, sees an improvement in the mentality and preparation of companies, especially over the last five years. "Nowadays, HR (human resources) is very trained to avoid this situation of discrimination. So, it will be analyzed on a case-by-case basis", she explains.
The lawyer adds that inclusion is a path of no return, even with prejudice still strongly embedded in society. According to Márcia, there is a lot of strong work done in the courts against discrimination, especially in relation to labor justice.
Source: Estadão
