The Federal Court of Campinas granted the right to a father to be absent from work for 120 days and receive paternity leave, which must be paid by the National Institute of Social Security (INSS) in the same basis as maternity leave.
According to judge Rafael Andrade de Margalho of the Special Federal Court of Campinas, as there is no specific law to deal with cases related to maternity leave to be granted to the father in the same basis as the one granted to the mother of the newborn, this does not prevents the judge, excelling by the principles and fundamental guarantees foreseen in the Federal Constitution, to grant the protection of childhood as a social right.
The plaintiff of the request reports that after the termination of the relationship, his ex-girlfriend found out the pregnancy, however, after the birth, she did not want to see or breastfeed the child.
On July 16 he got custody of the child. At work, he only got the right to paternity leave without pay.
According to the attorney in charge, Fernanda Zanetti, "in the absence of the mother, it is not reasonable that the child is helpless in the first months of life on the grounds of lack of legal provision, especially when the difference is in gender."
In its decision, which anticipates the right to receive the benefit until the final judgment of the merits, the judge considered the principle of equality between men and women regarding rights and obligations, pursuant to article 5 of the Federal Constitution and also article 227, which establishes that "it is duty of the family, society and the State to ensure children and teenagers, with absolute priority, the right to life."
Finally, the judge noted that the principles of human dignity and protection of children must prevail over the strict legality, and left to the discretion of the employer to extend the license of four to six months.
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