Equalisation of rights for adoption and surrogacy

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Enrique Mariano Stile
Estudio Jurídico Marval O'Farrell Mairal, Buenos Aires
ems@marval.com

Sofia Nuñez
Estudio Jurídico Marval O'Farrell Mairal, Buenos Aires
sgn@marval.com

Introduction

How to amalgamate a 1974 law with the 2020 reality regarding parental leaves of absence? In Argentina, the Labour Contract Law contemplates conventional cases of parental leave and omits a universe of families who do not have legal protection. Doctrine, jurisprudence, some collective bargaining agreements and other complementary laws have surged through the years, and many companies have also adjusted to granting greater leaves of absence.

In this article we will analyse the applicable labour legislation – or lack thereof – for leaves of absence in the events of adoption and surrogacy, focusing also on the situation of non-pregnant female employees and the case of equal marriages or partners.

Current Argentine legislation

Regarding labour law, the Labour Contract Law No 20744 (LCL) establishes maternity leave for pregnant workers for 90 days and a special leave for the birth of a child of two calendar days for the non-pregnant worker. However, in the LCL there are no traces of any leave of absence for adoption or surrogacy and the maternity leave does not expressly include the non-pregnant female worker. This means that, legally, the adopting or non-surrogate worker is entitled to only two days of leave for the birth of the child.

For its part, the Agrarian Labour Law No 26727 provides for a broader paid paternity leave of 30 consecutive days. Could this leave be granted in the case of adoption and surrogacy? Could the non-pregnant female worker also be entitled to it? As the title of section 52 of Law No 26727 refers to ‘parental leave’, a broad interpretation would cover these cases that have not been expressly contemplated in said law.

Likewise, Law No 24714 on family allowances regulates the right to pay an allowance in the event of adoption. This is the first law currently applicable in the labour law field that refers to adoption and legally equates it, to a certain extent, to motherhood. The norm does not make a distinction between women and men, so we understand that the sex of the worker is indistinct to receive this allowance.

At the level of collective bargaining agreements, several include a conventional parental leave for adoption. The number of days of special paid leave for the adoption of a child varies between industries, and ranges from two days to 60 days, which begins from the granting of custody for adoption purposes. There is still no express mention of surrogacy.

Although our scope is labour law, it is relevant to mention other areas of law. The first adoption law (Law No 13252) dates from 1948, prior to the enactment of the LCL in 1974, so it seems unfair that adoption was not expressly contemplated in the LCL.

In 2015, the current Argentine Civil and Commercial Code came into force, which brings very concrete changes in order to promote the improvement of legislation on adoption. There is a whole title (Title VI, sections 594–637) which addresses adoption and new family realities, creating a third type of adoption by integration (adoption of the spouse’s child), incorporating couples in a coexisting union as applicants, including new problems related to the coverage and guardianship of the family formed on the basis of said unions between same-sex couples and adding the interpretative proposals derived from a new notion of civil marriage. If we add to them the recognition of self-perceived gender identity (Law No 26743) and the new forms of filiation to which assisted human reproduction techniques give rise, we will clearly notice the insufficiency of labour regulations related to parenthood, to give complete coverage to the new family conformations. Recognising that progress was decisive in family law, not in labour law.

From a constitutional perspective, the international instruments that protect women contemplate the right to motherhood without making any distinction regarding the form of initiation of the filial bond. The preamble to the Convention on the Elimination of All Forms of Discrimination against Women (with constitutional hierarchy according to section 75, paragraph 22 of the Argentine Constitution) recognises ‘the social importance of motherhood and the role of both the father and of the mother in the family and in the education of the children’.

Doctrine and jurisprudence

Focusing on the reality of the facts, the birth of a child (either from the pregnant woman or from a surrogate mother) as well as the granting of the child for adoption, saving the differences regarding the physical consequences of childbirth for the mother, imply the beginning of a new coexistence and the forging of the parent-child bond. This period of adaptation is essential for the family. During this time, the foundations are laid for the further development of the child, the parents and the family in general.

The most advanced doctrine understands, at this point, that there is no real difference between the situation of the adoptive parents and the biological parents that justifies a different treatment.

Regarding jurisprudence, the protection granted to the pregnant mother has been extended to non-pregnant mothers and fathers (the latter in the case of same-sex marriage). The same foundations that we mentioned before were contemplated around the comprehensive protection of the child and the family. These are some related advance-guard sentences.

In 2012, Court VI of the Argentine Labour Court of Appeals (ALCA) ruled that the dismissal of an employee that took place after fertilisation of the ovum and its implantation in the mother's womb, while she was on leave for such motive, known to her employer, was discriminatory. The court understood that maternity protection should be recognised, even when the worker was not pregnant yet.

In 2015, two married male adopters requested that one of them be granted paternity leave under the same terms and conditions of maternity leave, since their case was not legislated and this was discriminatory. Family Court No 5 of Mar del Plata, a city in Buenos Aires, warned that the regulations differentiate the leave in direct relation to whether the worker is a ‘father’ (parental leave) or a ‘mother’ (maternity leave), and since this was a two-male marriage, neither of them could apply for maternity leave. Thus, they could not enjoy the extended leave only because neither was a ‘woman/mother’ as typified in the LCL. However, the Court ruled that greater recognition of the equality of obligations between the fathers and mothers when it comes to caring for and raising their children should be granted: allowing only women to get maternity leave perpetuates gender stereotypes and their disadvantages. Consequently, the Court granted the term of maternity leave to one of the parents, guaranteeing him the right to job stability, in accordance with the right to care for the newly arrived child in the family.

In 2011, Court VII of the ALCA understood that the lack of inclusion of leave for adoption in the LCL is certainly a violation of the rights to protection of the family and to equality that arises from the current legislation. The Court based the argument on the fundamental guarantees of our legal system of the equality of the inhabitants before the law of constitutional roots. It defended that the scope of said order is not limited to the biological family but extends to adoptive bonds.

In 2014, Court V of the ALCA understood that adoption is legally equated with maternity, as recognised by Law No 24714 on family allowances. Thus, the claim for the special compensation requested by the plaintiff should be accepted based on the presumption of dismissal due to pregnancy of the LCL, since the plaintiff made known to her employer that she had obtained the guardianship of a child with adoptive purposes prior to the date of her dismissal.

In 2019, the Federal Court of La Plata, a city in Buenos Aires, ordered the defendant to grant the plaintiff paid maternity leave. In this case, two married women, both workers from the same employer, requested access to co-maternity leave within the framework of their right to equal and non-discriminatory treatment. The Court declared that the applicable legal regime is evidently not updated in accordance with the emerging rights of the new legislation on gender identity, equal marriage, family diversity and assisted human reproduction techniques. Therefore, it was necessary to reconcile the local regime with the protection standards that derive from the norms of the highest hierarchy in our legal system. The plaintiff’s situation was equated with adoption, supported in the Argentine Civil and Commercial Code, which contemplates the protection of the child by the non-pregnant parent, which was the plaintiff’s case.

Present and future

Positively, most companies have adjusted to the reality of families, adopting a more comprehensive concept and granting paid leave for adoption and surrogacy cases. Several companies have maternity, paternity, adoption and surrogacy policies in place. Some range from extending parental leave to 15 days, to granting the same period as if it were maternity leave (90 days). Some companies even offer financial assistance in assisted reproduction as a benefit, both for the employee and their partner. Since legislation is limited, such benefits already imply an improvement in employees working conditions. Furthermore, if there were no written policy, it would also be possible for the employer to grant unpaid leave at the employee’s request.

Regarding the future, from March 2018 the Argentine Chamber of Deputies is analysing a bill to guarantee gender equality in the workplace. The following points stand out:

• guarantee of equality of gender, opportunities and salary, in all aspects of working life;
• prohibition of any type of discrimination based on gender or marital status;
• extension of paternity leave;
• grant of leave for assisted fertilisation procedures;
• possibility for all workers to agree to leave without pay and for women to return to work after maternity part-time for six months; and
• grant workers in charge of children up to four years old the possibility of scheduling with their employer a temporary reduction in their working hours, with a proportional remuneration.

This bill is currently in the Labour Legislation Commission, in the Argentine Chamber of Deputies. However, no further comments have been made on its enactment.

Conclusion

In Argentina, both adoption and surrogacy can be difficult, lengthy and exhausting processes physically, emotionally and financially.

In this context, the fact that the labour law does not protect the worker is not only shocking but also unfair. In particular, the entire Argentine legal apparatus enhances the concept of family (conventional at first, but now taking in a broader concept) and labour law is no exception. We see this spirit in the case of maternity leave, protection of marriage and many other examples. In this same line of thought, Congress should analyse these cases in depth, which are not expressly contemplated by the law but which coexist in reality, and give them a fair regulatory framework.

Simply put, the LCL (or rather, legislators) must catch up.

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