#CostaRica 🇨🇷 #BDS_LaborAlert: Optimization of Digital Signatures in Labor Documentation
In accordance with Article 8 of the "Law on Certificates, Digital Signatures, and Electronic...
Our society is in constant change and evolution, as are our forms of coexistence. For this reason, the law does not have all the answers, as it reacts after the emergence of social phenomena. A clear example of this is the challenges arising from the various family structures that exist in Costa Rica, which, after long struggles, achieved social and legal recognition with the approval of same-sex marriage on May 26, 2020.
Two years later, our country introduced special leave policies, such as paternity and adoption leave, which were not explicitly regulated in the Labor Code. However, these policies did not fully address all current forms of motherhood and fatherhood.
Specifically, in December 2023, a married couple of mothers (a biological and a non-gestational mother) had to file a writ of interim injunction for the protection of constitutional rights (amparo) before the Constitutional Chamber of the Supreme Court after their attempt to apply for maternity leave was denied for the non-gestational mother. The Health Authority argued that there was no specific leave provision in the law for her case. It was likely the first time the authorities faced a situation where a child had two mothers.
The Constitutional Chamber ruled in favor of the claimant (Ruling No. 03875-2024) and, regarding the potential discriminatory action, determined that there was indeed a violation of essential rights because “if it had been a heterosexual couple, the barrier encountered by the claimant would not have existed.” However, the Supreme Court acknowledged that, since current leave policies do not provide a legal solution to the situation, the Health Authority should have applied the general principle of equity to provide a response that did not infringe the claimant’s human rights.
One of the most striking aspects of the ruling is that the Constitutional Chamber disagrees with the non-gestational mother’s claim that maternity leave is appropriate in this case, as maternity leave is defined as “the mandatory rest period for actively insured pregnant workers due to childbirth,” as well as for the corresponding postnatal recovery period.
Therefore, the Supreme Court determined that maternity leave, which is inherent to the biological fact of giving birth, does not apply to the case of a non-gestational mother, nor does it extend to someone who takes care of a newborn whose mother has passed away, nor does it apply to joint adoption. Hence, the Court found that, based on the principle of equity, the leave “could be adjusted […] to that of the biological father, considering that the child is registered as the claimant’s son with the Civil Registry.”
After determining the “appropriate” leave, the Constitutional Chamber stated that the interim injunction was upheld only for indemnity purposes “due to the violation of rights to social security, the protection of family ties, the safeguarding of the best interest of the child, and the right not to be subjected to discrimination based on sexual orientation,” since the period for enjoying that leave had already elapsed.
Additionally, it is worth noting that there was a dissenting opinion of one of the judges in this case, which stated that what was actually revealed was “a legislative omission that should be addressed by […] the Legislative Assembly or the Board of Directors of the Costa Rican Social Security Administration,” as paternity leave is not the appropriate legal figure for this situation, since it “fails to provide legal certainty for other possible scenarios in the future.”
Ultimately, we still have much to do to keep up with the changing times. From the above, two conclusions can be drawn about the pending tasks to continue evolving toward more equitable standards:
- Social dynamism requires entities to provide solutions to the gaps in the law by integrating legal principles and standards, to avoid discrimination or the violation of human rights.
- The dynamism of labor law is evident, as it faces challenges that go beyond the mere contractual relationship and must consider the worker in their personal, family, and social dimensions, which may guide its future toward a more dignified recognition of human rights.
This case opens up the opportunity for a broader discussion in Costa Rica on the importance of work-life balance and the need to legislate new leave policies that reflect social changes, such as co-maternity leave.
The bills currently under review by the legislative commissions could provide for a clear legal solution to cases like this, which will become increasingly common.
But what should we do while legislation catches up with social change? In this situation, employers must then urgently consider implementing internal policies that clarify these issues for the benefit of a more inclusive organization.
Marco Durante
Managing Partner, BDS Asesores
