To protect the interests of the child, the maternity pay benefit may be granted to a single father, even though this is not provided for by law. With this understanding, the 2nd Panel of the Federal Regional Court of the 3rd Region (TRF-3) (SP and MS), unanimously, denied relief to an appeal by the INSS (National Social Security Institute) and confirmed the judgment that had recognized the request for the granting of the maternity pay social security benefit to the single father of a pair of twins conceived by means of an in vitro fertilization procedure.
The plaintiff based his request on an analogical interpretation of Law 12.873/13, which brought the right to adoption leave indistinctly to men and women; on the principle of isonomy, article 5, caput and I, and also on article 3, IV of the Constitution; on the principle of the absolute protection of the interest of the child and the adolescent, as provided for in article 4 of the ECA (Statute of the Child and Adolescent), and on the constitutional principle of special protection of the family, set out in article 226, caput, also of the CF (Federal Constitution).
To recognize the right, the judge said that the benefit is not tied “to a mere personal privilege of the worker, of a patrimonial nature, but rather, essentially, to the protection of the family and the best interest of the infant, a mens of an extra-patrimonial nature”.
In its attack on the judgment, the INSS relied essentially on the principle of legality, setting out that “there is no legal provision to confer the benefit of maternity leave on a male public servant”.
The rapporteur of the appeal, Federal Appellate Judge Souza Ribeiro upheld the judgment. He said that it is unquestionable and uncontroversial that there is, in this case, an absence of a specific legal provision for granting the maternity pay benefit to the single father, “however, it is certain that, in the face of the gaps in the law, the magistrate is permitted to judge by analogy, as can be inferred from article 4 of the Lindb (Law of Introduction to the Norms of Brazilian Law)”.
He said that the concern of the courts and the legislator with the protection of the various forms of family that present themselves in society is high and that this concern does not escape social security matters. “It is not possible to see obedience to article 3 of the Statute of Early Childhood if the father, in the case at hand, were barred from the right to be with his child, in the enjoyment of leave for that purpose. Indeed, this must be the paradigm for the correct interpretation of the institution of parental leave: the best interest of the child”, he stated.
“The law, as is known, is of slow and gradual construction, whether under the legislative lens or under the jurisprudential lens. There is no way to punish the one who, for enjoying the advances of the sciences, did not manage to have the laws keep up with him in time”, he emphasized.
“The minor who finds himself unassisted by the mother, in that initial moment of life in which her presence is most necessary to ensure a healthy physical, emotional, mental and spiritual development, must be guaranteed the right to family assistance expressed in the presence of the father who will seek to make up for such lack for the same period of time that the law guarantees to the mothers”, voted Souza Ribeiro, granting the benefit to the insured party and denying the INSS appeal.
Source: Conjur/ Thiago Crepaldi
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