Constitutional progress in co-maternity leave for homoparental families

The recent Ruling 002790-2025 of January 29, 2025, issued by the Constitutional Chamber of the Supreme Court of Justice, represents a significant step forward in expanding the scope of employment leave regulations to reflect the reality of homoparental families. This follows the recognition of same-sex marriage, established on May 26, 2020, after Advisory Opinion 24/17 of November 24, 2017, issued by the Inter-American Court of Human Rights, and the subsequent Ruling 2018-012782 of August 8, 2018, issued by the Constitutional Chamber.

Ruling 002790-2025, which concerns an action of unconstitutionality, has as its precedent Resolution 03875-2024 of February 13, 2024, in which the Chamber reviewed a specific case and, from a cautious perspective, partially upheld the amparo appeal filed against the Costa Rican Social Security Fund for failing to grant leave to the non-gestational mother.

That resolution revealed the existence of a regulatory exclusion affecting same-sex couples, specifically homoparental families made up of two women, since the non-gestational mother lacked a mechanism that would allow her to enjoy leave due to the birth of the newborn. This exposed a legislative omission that produced unequal treatment, affecting both the employee and the minor.

Relative unconstitutional omission

As a result, in the aforementioned Ruling 002790-2025, the Constitutional Chamber elaborates on the relative unconstitutional omission of Article 95 b) of the Labor Code and Article 41 of the Framework Law on Public Employment (No. 10,159), determining that these provisions unjustifiably excluded the non-gestational mother from access to paternity/maternity leave, thereby redefining its scope in accordance with the principle of equality and non-discrimination.

What was raised in both the amparo appeal and the action of unconstitutionality responds to a legal issue derived from a regulatory framework previously established on the basis of a binary family model and, in turn, the new contemporary adaptations within the Costa Rican legal system, which until that point provided that maternity leave was linked only to gestation and to the paternity of the biological father.

In this way, the Constitutional Chamber declares the unconstitutionality of the aforementioned provisions and understands that, in homoparental families where co-maternity is exercised, it is important for the non-gestational mother to have access to paternity leave or permission. Otherwise, the fundamental rights to equality and the special protection enjoyed by the family, women, and minors are violated, in relation to the principles of the best interests of the child and equity. (1)

Scope for the non-gestational mother

Consequently, it was determined that Article 95 b) of the Labor Code and Article 41 of the Framework Law on Public Employment must be interpreted and applied in accordance with such constitutional rights and principles. Henceforth, it must therefore be understood that the benefits regulated under those provisions may also be granted to the non-gestational mother who exercises co-maternity within a homoparental family. (2)

With this ruling, the Chamber recognized the broad scope of maternity leave as an instrument of parental co-responsibility, and not exclusively as a situation linked to biology. In doing so, it transforms the structural issue and establishes a binding standard for all public and private employers, thereby consolidating a general standard.

Regional comparison on co-maternity leave and homoparental parenthood

From a macro-level comparative perspective, this current debate within our legal system is parallel to the interpretation of Article 177 of the Employment Contract Law of the Republic of Argentina, which had wording similar to Article 95 of our legislation. Through the judgment of December 27, 2018, issued by the Contentious Administrative Court No. 1 of La Plata (Díaz Reck ruling), it was held that the purpose of maternity leave goes beyond the physical recovery of the gestational person and must also respond to family protection and the care of the newborn. Although it was a first-instance ruling, it prompted reviews of administrative regulations and legal reform projects.

Like the Argentine court, our Constitutional Chamber corrects an indirect discrimination and reaffirms that employment rights must be interpreted in an evolutionary manner. Likewise, the need for legislative updates regarding this issue and the relevant subsection is evident, due to the operational doubts that may arise in practical application.

Bill on co-maternity leave and regulatory update

Consequently, it is necessary to mention that Bill No. 23.715 is currently before the legislature and seeks to introduce the concept of co-maternity leave. This bill is currently being analyzed by the Women’s Commission and is still pending approval in first and second debate. If approved in the future, it will be necessary to create regulatory balance, avoiding fragmented solutions that could reproduce asymmetries.

Employment implications of co-maternity leave for employers

It is important to understand this provision and its implications. For employers, this is a measure that must be taken into account, since they must recognize the corresponding leave for the non-gestational mother in homoparental families under the same terms as paternity leave. Refusal could result in constitutional review and employment claims. Therefore, it is recommended to review regulations, internal human resources policies, and the corresponding administrative application.

At Godínez Legal, we provide corporate employment law advice in Costa Rica, supporting national and multinational companies in the prevention, management, and resolution of employment matters. Our team of attorneys specializing in employment law offers personalized legal guidance for compliance with Costa Rican employment legislation, handling employment disputes, and strengthening internal policies. For more information or to schedule a consultation with our employment attorneys in Costa Rica.

Bibliography on co-maternity leave

Díaz Reck. (2018). Díaz Reck, Malena c/ARBA s/Medida Autosatisfactiva. Interpretation of Article 177 of the Employment Contract Law in cases of homoparental parenthood. https://ar.lejister.com/pop.php?option=articulo&Hash=4997164302646b6ff2a3ae64d5e0e0c7&from_section=

Delfino.cr. (2025, March). New paternity leave for non-gestational mothers in homoparental relationships. https://delfino.cr/2025/03/nuevas-licencias-de-paternidad-para-madres-no-gestantes-en-relaciones-homoparentales

(1) (2) Labor Code. Law No. 2 of August 27, 1943. Official Gazette La Gaceta, Costa Rica.

Employment Contract Law No. 20,744. (1976). Article 177. Republic of Argentina.

Framework Law on Public Employment No. 10,159 of March 8, 2022. Official Gazette La Gaceta, Costa Rica.

Legislative Assembly of the Republic of Costa Rica. (2023). Bill, File No. 23.715: Reform of Article 95 of the Labor Code and Article 41 of the Framework Law on Public Employment (Co-Maternity Leave). San José, Costa Rica.

FAQ on co-maternity leave