summary
Same-sex parents legally gain the right to maternity pay for their daughter Antonella, an important achievement for newly formed families in Brazil that highlights the need for legal modernization.
On the third Wednesday of the same month, Jarbas Bettencourt and Mikael Mielke, Antonella’s parents, achieved another historic achievement. Already known to be the first parents, in the southern region, of a child with their DNA – the result of Gerbas’ genetic material and Mikael’s sister’s egg – they are now celebrating a victory beyond the walls of their home: judicial recognition of the right to maternity pay. A decision that could light paths for other same-sex families and new forms of parenting in Brazil.
Maternity benefit, also called maternity pay, is a benefit provided by law and intended for those who need to take time off work due to childbirth, adoption, legal guardianship or miscarriage. In practical terms, it is a financial relief at the beginning of a child’s life and recognition of the time needed for care and upbringing.
“This is our daughter’s right”
The desire to understand this truth was born by chance. “Actually, we know that this benefit exists in the straight community,” Gerbas says. “We know that the mother has the right to receive a maternity grant, but because we are gay, we admit that we did not know that this existed.” land.
The suspicion arose after watching an interview with lawyer Luis Gustavo Nicoli. “We have contacted the office to inform us and to understand this possibility. Because it is very important for us to make clear that this is not a benefit for the parents. It is a benefit and a right for our daughter,” he emphasizes.
“When we get this assistance, we do not have the right to go to a party, go out, or spend money on a trip. No, maternity assistance, when given, is designed to raise our daughter (…) so that parents can take care of their child, be close to their child, and have close contact.”
But the first response came like a bucket of cold water. The administrative application submitted to the National Institute of Social Security (INSS) was rejected after a full month of waiting. Gerbas remembers the moment he saw the model, designed entirely for a woman to answer, and was amazed.
“What should I do?” the lawyer asked while reading the questions. “I admit I was a little exasperated. Mikael and I filled it together and looked at each other and said: ‘Oh my God, it’s the end of the world that we have to do this here’. How ridiculous! We are a couple, a normal family.”
They say the feeling is to be seen as an exception, when all they want is to live a normal life to raise their daughter.
The turning point came unexpectedly, via WhatsApp. Even before finishing the letter, Gerbas felt his hand trembling. In moments, the whole body reacted. For a few seconds, he thought until the message was fake. Then came relief. “It was very emotional. It’s not about the money. It’s about Antonella.”
For them, the decision represents a recognition that should be simple: children have rights, regardless of how their families are formed.
“Rights and duties should be equal,” says Gerbas. “It is the right of the child, regardless of whether it is the child of a straight couple, a gay couple, a solo couple, a trans mother, or a trans father.”
The absence of institutional care is as harmful as denial, he said. “There was a lack of reception. Absolutely. 100%.” By being highly visible on the networks, they realize the responsibility they bear. “We have an obligation to raise our flag and fight for the rights we understand we should have.” Above all, they want to show the nature of their existence: “It is so natural that we went there, fought, won, and won.”
New facts
For lawyer Luis Gustavo Nicoli, the case exposes the gap between law and reality. “The National Social Security Institute will reject this benefit because it does not have its own rules. The legislation talks about maternity pay for pregnant mothers.”
Therefore, he explains that it is necessary to take action. “If you create a suitable legal document, there is no difficulty. But there is a need to change the legislation.” The work lasted four months.
“It’s not fast, unfortunately. Four months until you see a guarantee of a right that could be automatic. And we have a sensitive judge. If we have a judge who is not very sensitive to apply the rule, he can reject it and we will file an appeal. That will take more than a year.”
In the reality of a vulnerable family, with the constant crying of a child who needs attention, lost time can be even more serious. But in the case of the Milky Bettencourt family, the focus is on Antonella’s right to be treated like any other Brazilian child. Now, the National Institute of Social Security will be able to appeal within 10 days. If that doesn’t happen, as Nicoli expects because it’s a simple application of the rule, the family will get all four aid payments in one amount. The amount is calculated based on the remuneration of the contributing applicant – in this case, Jarbas – and will be approximately R$30,000.
Nicoli highlights that the decision opens up possibilities for multiple family formations: single parents, same-sex couples, adoption, and families formed by a supportive mother. All of them, according to the lawyer, have something in common: children who also need their rights protected.
the land He tried to contact INSS, but had not received any response at the time of writing.