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Colombia

Colombia: Does surrogate motherhood allow maternity leave in its totality to biological father?

In the Decision T 275 of 2022 the Constitutional Court studied a constitutional action for the protection of fundamental rights filed by a petitioner in his own name and on behalf of his daughter to request the recognition and payment of “paternity leave for a time equivalent to the number of weeks granted to mothers by law”, in order to take care of his newborn daughter, since she had been born through the figure of “surrogate gestation” and therefore, he would be the “unique father and head of the family”.

The High Court reiterated that the constitutional action for the protection of fundamental rights is an appropriate mechanism to recognize the maternity leave, when it is denied and affects the adopter or the new-born, since it may affect the minimum vital in the year following the adoption or birth when there is no income other than the salary.

Key Action Points for Human-Resources and In-House Counsel.

In this particular case, the Constitutional Court ruled in favour of the petitioner and requested to execute the required actions to extend the Maternity leave and must correct the paternity leave granted to the claimant, without this implying that the maternity and paternity leave granted to him would be concurrent. However, this decision is an important precedent for cases regarding surrogate motherhood, that is not yet regulated in Colombia.