From a harmonious interpretative derivation of Articles 13, 43, and 53 of the Political Constitution of Colombia, we find the fundamental right to reinforced job stability that belongs to pregnant women or those on maternity leave – and by extension, adoptive mothers – which has been termed as maternity protection.
This constitutional right, in the words of the Constitutional Court, is the right not to be discriminated against in the workplace due to one's condition, which entails: the right to retain employment; the right not to be dismissed because of or on the grounds of pregnancy, childbirth, or lactation, in the case of biological mothers, with such protection extended to adoptive mothers by equating the date of childbirth with the date of the official delivery of the child or adolescent being adopted; and the right to remain in employment until required, provided, of course, that no objective cause unrelated to the worker's condition arises, coupled with authorization from the competent labor authority, which must verify the existence of such cause, all to ensure that the dismissal is not declared ineffective.
The rights and social benefits (maternity leave as a prohibition on dismissal) that must be guaranteed to workers who are pregnant or nursing were initially conceived solely to safeguard biological mothers. This is based on the Substantive Labor Code adopted on August 5, 1950; Law 197 of 1938; and Decree 3135 of 1968. Subsequently, Law 24 of 1986 added numeral 4 to Article 236 of the Substantive Labor Code, which paved the way for extending reinforced labor protection to adoptive mothers under the principle of equality, granting them the benefits developed in Chapter V, as follows: “under the same terms and to the extent applicable, for the adoptive mother of a child under 7 years of age, assimilating the date of childbirth to the date of the official delivery of the child being adopted.”
The legislature's decision to extend reinforced labor protection to adoptive mothers is justified by the need to protect, on equal terms, families constituted by both civil and biological bonds, since in one way or another, adoptive mothers must and should fully ensure the well-being of their children like any other mother, in terms of health and care for a certain period. Another radical factor in this legislative decision, and no less important, is the high rate of adoption processes currently evident, an event that did not occur in the 1950s. Subsequently, through Law 69 of 1988, the protection of the adoptive mother was extended under the same terms to public sector employees. However, in 2010, it became evident that the expression “of a child under seven years of age” was contrary to Colombian provisions that refer, in the words of the Constitutional Court, to:
• Equality enshrined in Article 13 of the Political Constitution of Colombia.
• The principle that orders recognizing all children the same rights, regardless of how they arrived in the family. Article 42 of the Political Constitution.
• The prevalent protection of children. Article 44 of the Political Constitution.
Therefore, from this moment on, it will be considered not children under 7 years of age but rather minors under 18 years of age.
Subsequently, the provisions and guarantees outlined in Chapter V of the Substantive Labor Code, granted to biological mothers and adoptive mothers, assimilating the date of childbirth to the date of delivery of the adopted child or adolescent, were rectified as part of labor guarantees, once again through Article 1 of Law 1468 of 2011, which amended Article 236 of the Substantive Labor Code. With respect to public sector employees, the extension of the aforementioned protection regarding maternity leave and prohibition of dismissal remains, without the public or private nature of such employment conditioning its application.
Considering all of the above and now specifically regarding adoptive mothers, we find that it is relevant to provide this mother with that special protection enjoyed by biological mothers both during the gestation period and at the time of childbirth and the weeks following the birth of the child, since it is necessary to ensure the enjoyment of social benefits aimed at strengthening integration into a new family in terms of quality and dignity.
In the context of adoption, it would be understood that the adoptive mother, in accordance with the provisions of the Constitutional Court, must do likewise once the delivery of the child has been confirmed, in order to ensure that at the time of their meeting she has the material and emotional elements that enable the construction of those bonds that will, in one way or another, strengthen the maternal relationship and guarantee the integration and adaptation of the child into their family nucleus. The foregoing implies that it is prohibited to disregard the importance of that period prior to delivery, since doing so would create an unjustified distinction between biological and adoptive mothers, to the detriment of the child.
From what moment do adoptive mothers enjoy reinforced job stability?
According to ruling T-499 A of 2017, the high constitutional court establishes that adoptive mothers acquire the prerogatives derived from maternity protection from the communication of the approval of the adoption and the assignment of the minor, in order to guarantee the principle of equality, since the Constitution and legislation have expressly stated that benefits regarding biological mothers will be extended under the same terms to families with civil bonds from the completion of the adoption process.
Thus, regarding the period prior to the delivery of the minor, it is indicated that it cannot be indefinite, since, if it were, it would give rise to an unjustified advantage for one type of family, in this case, the civil one over the biological one.
To establish the moment from which adoptive mothers enjoy reinforced job stability, the high constitutional court considered it important to first study the stages of the administrative adoption process in force in our country. Thus, Resolution 2551 of 2016 of the Colombian Family Welfare Institute (ICBF) reveals that the process followed has six stages, namely: information and legal orientation on the procedure; assessment of the suitability of applicants; evaluation and approval of the application by the Adoption Committee; preparation for the first family meeting; integration of the new family; and post-adoption follow-up.
From the completion of the sixth stage, the ruling emphasized that a reasonable expectation arises of the imminent delivery of the child or adolescent and likewise the satisfactory termination of the process. Therefore, at this stage, the Adoption Committee, after an internal process, approves, decides, and communicates to the applicants or interested parties the assignment of the adoption of a minor, respectively. It is this communication of approval of adoption and the assignment of the minor that is assimilated to the news of pregnancy, that is, the condition of adoptive mother is configured, thus enjoying the due constitutional protection of maternity that the biological mother has. This protection is then materialized by prohibiting, on the one hand, dismissal from that moment until three months after the delivery of the minor and, on the other hand, the right to recognition and payment of paid maternity leave, assimilating the date of childbirth to the date of delivery of the minor for its effects.
BIBLIOGRAPHIC REFERENCES
Colombia (1950) Substantive Labor Code, Bogotá, Legis.
Colombia, Constitutional Court (2017), “Ruling T-499A/17”, Rapporteur Judge Luis Guillermo Guerrero Pérez, Bogotá.
Unknown author (2018). Before the delivery of the minor, adoptive mothers enjoy reinforced job stability. Ámbito Jurídico. No. 483, p. 3.