Argentina: Maternity Leave in Cases of Surrogacy

Author: Nicolás Grandi

In the case “T, J v. PEN and others s/ Amparos y Sumarísimos”, Chamber No. 3 of the Federal Court of Social Security had granted a maternity leave to an employee who was not pregnant herself, but who was carrying out the conception of her baby through a surrogate mother, in a hospital based in Ukraine.

Section 177 of the Employment Contract Law (ECL) prohibits mothers from working for 45 days before and up to 45 days after childbirth. It also sets forth that during that leave women will be entitled to all the benefits provided by the Social Security System, which ensures her the right to receive an amount equal to her salary during the leave.

By making an extensive interpretation of this Section of the ECL, the Court agreed to grant the leave to the mother who was waiting for her baby through a surrogate mother, arguing that the main purpose of the leave is to provide children with the first necessary care after birth, guaranteeing the integration of the whole family and the affective bonding of the children with the parents.

The Court also pointed out that the loophole regarding a specific leave for these cases collides with the protection of the superior interests of the unborn children, who must be guaranteed comprehensive care in their first months of life, in accordance with the Convention on the Rights of the Child, which has constitutional hierarchy in the terms of Section 75, paragraph 22, of the National Constitution.

Key Action Points for Human Resources and In-house Counsel

Based on the above, employers should consider granting maternity leaves in accordance with Section 177 of the ECL, also in cases of surrogacy.