The Supreme Federal Court and maternity leave for mother who did not become pregnant in homoaffective union. An apparent advance in the midst of a regression of social rights in Brazil

Abstract

The concept of family has changed with new affective groupings. The Federal Constitution of 1988 gave special protection to common-law marriage between a man and a woman as a family entity and jurisprudence began to understand other forms of affective association as a family entity, with the Federal Supreme Court equating homoaffective relations with the family. The objective of the study is to discuss the decision of the STF in Extraordinary Appeal No. 1,211,446 and the thesis formed with general repercussion on topic 1072, dealing with the possibility of granting maternity leave to non-pregnant mothers, in a homoaffective union, whose partner became pregnant after an artificial insemination procedure. The method used to develop the work was descriptive, based on bibliographical research and jurisprudential analysis. The assumed premise is that administrative decisions centered on strict legality, especially when specific rules of protection are absent, in similar cases of social protection to that of RE No. 1,211,446, conflict with the values of human dignity and work, especially when involve the rights of vulnerable people protected by express constitutional principles. The method used to develop the work was deductive, with bibliographical and documentary research as methodological procedures, associated with the selected case study. The research questions whether the thesis adopted by the STF fulfills the role of protecting the fundamental rights of children in homoaffective union nucleus, from the perspective of maternity leave and social security benefits. The hypothesis is the protective insufficiency of the thesis formed in the system of general repercussion in the context of RE No. 1,211,446 with the Court's self-restraint by limiting itself to the objective of the extraordinary appeal.