Adequate and sufficient maternity leave, coupled with appropriate accommodations on return to work, are essential to women’s physical and psychological wellbeing after giving birth. This memorandum outlines the international and regional framework relating to maternity benefits and provides country illustrations of best practices from Sweden, Croatia, Chile, South Africa, and Vietnam.
Women and Justice: Keywords
Domestic Case Law
A parliamentary minority requested that the Constitutional Court declare unconstitutional a Ministry of Health decree that determined the availability of family planning methods and permitted distribution of emergency contraception by national health centers. The constitutional court noted that the “right to life” is fundamental under the Chilean Constitution. It rejected scientific arguments that emergency contraception did not affect the life of a conceived but unborn embryo. In a dissenting opinion, one judge noted that the rights protecting the reproductive rights of women were enshrined in CEDAW in conflict with the Constitutional Court’s decision. The Constitutional Court’s decision did not prevent all distribution of emergency contraception in Chile, but banned it from being distributed by clinics and hospitals that are part of national health system. The constitutional court decision was effectively overruled in January 2010 by Law No. 20.418, promulgated by President Bachelet, which permitted distribution of emergency contraceptive pills in both public and private health centers, including to persons under 14 without parental consent. The law also requires high schools to enact sexual education programs.
In a case challenging the constitutionality of a Ministry of Education directive setting minimum standards for pre-schools, the Court reiterated the rights of both boys and girls to receive at least a certain minimum level of education.
International Case Law
Karen Atala Riffo, a judge in Chile, and her husband separated in 2002 and agreed that she would retain custody of their three daughters. After a few years, Ms. Atala began to live with her female partner. In response, her husband filed for custody claiming that the mother’s homosexuality was detrimental to the children. The lower court confirmed the grant of custody to the mother, finding that there was no evidence that homosexuality was pathological conduct that would make Ms. Atala unfit as a mother. On appeal, however, the Supreme Court of Chile granted custody to the father, on the basis that the mother’s sexuality would cause irreversible harm to the children’s development. Ms. Atala took the case to the Inter-American Court of Human Rights (“IACHR”), marking the first time that the IACHR heard a case related to LGBT rights. The IACHR held that sexual orientation is a suspect class and that the Chilean courts had discriminated against Atala in the custody case in violation of the American Convention’s right to equality and non-discrimination. In 2012, the court ordered Chile to pay Atala USD $50,000 in damages and $12,000 in court costs. The Chilean government agreed to abide by the IACHR’s ruling.