Maternity, paternity and parental leave in Japan and Brazil: different systems, similar challenges
| Autor | Akiyo Shimamura e João Renda Leal Fernandes |
| Páginas | 11-40 |
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MATERNITY, PATERNITY AND PARENTAL LEAVE
IN JAPAN AND BRAZIL:
DIFFERENT SYSTEMS, SIMILAR CHALLENGES
Akiyo Shimamura1
João Renda Leal F ernandes2
Abstract: this study seeks to analyze, from a comparative perspective,
the maternity, paternity and parental leave systems currently in force in
Japan and Brazil, whilst also examining demographic problems and
aspects that evidence gender inequalities in the labor market. It also seeks
to analyze some proposals that have recently been approved or which are
under legislative discussion in both countries.
Keywords: Japan; Brazil; Maternity leave; Paternity leave; Parental
leave; Maternity pay; Labour Law; Social Security Law; Comparative
Law.
1. Introduction
Despite all the many sociocultural differences, and despite the
fact that the legal systems of Japan and Brazil are based on somewhat
1 Juris Doctor (Law) by the University of Tokyo. Graduated in Letters (Portuguese
Language) and Local Culture from the University of Foreign Studies in Tokyo. Associate
Professor of Labor Law and Social Security Law at Rikkyo University (Tokyo, Japan).
Visiting Professor at the Law School of the University of São Paulo - USP (2016-2017).
He holds the title of Juris Doctor (Law) by the University of Tokyo. Graduated in Letters
(Portuguese Language) and Local Culture from the University of Foreign Studies in
Tokyo. E-mail: shimamura@rikkyo.ac.jp
2 Master’s Degree and PhD Candidate in Labor La w and Social Security Law at Rio de
Janeiro State University (UERJ), Visiting Researcher at Harvard Law School (2019-
2020). Master in Labor and Social Security Law from the Faculty of Law of the
University o f the State of Rio de Janeiro (UERJ). Judge at the Labor Court for the 1st
Circuit (Rio de Janeiro, Brazil). Master’s Degree and PhD Candidate in Labor Law and
Social Security Law at Rio de Janeiro State University (UERJ), Visiting Researcher at
Harvar d Law School (2019-2020). E-mail: jrlfernandes@gmail.com
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different structural foundations, certain dilemmas and challenges relating
to the protection of motherhood and fatherhood appear to be currently
shared by both countries.
Firstly, the disparity between the leave and benefits enjoyed by
men and women following the birth or adoption of a child contributes to
the perpetuation of a discriminatory patriarchal tradition, which largely
assigns responsibility for domestic services to women, including the care
of children and the home.
Secondly, the fertility rates of both countries are at levels which,
considering the gradual aging of the population, make it difficult to
maintain an economically active population capable of satisfactorily
assuring the financing and financial-actuarial balance of welfare systems
that are, in turn, capable of providing support to those who need them. In
Japan, the total fertility rate was 1.34 children per woman in 20203. In the
same year, in Brazil, the rate was 1.76 per woman4. In both countries, the
indices are below the so-called replacement level fertility rate (usually
around 2.1)5, considered sufficient to maintain the size of the population
and the balance of social security regimes, especially those with a
contributory bias, such as in Japan and Brazil.
Finally, in the two countries, some traditional legal doctrines –
based on the outdated idea that the family exclusively derives from the
union between a man and woman who are able to procreate through the
conception of biological children – appear to be dissociated from the
multiple and different contemporary models of the family, of which we
highlight the following:6
3 JAPAN. KSEI RDSH (Ministry of Health , Labor and Welfare). Annual report of
demographic statistics (General) overview. Available at: https://www.mhlw.go.jp/toukei/
saikin/hw/jinkou/geppo/nengai20/dl/gaikyouR2.pdf. Accessed on: 19 Jun. 2021.
4 BRAZIL. INSTITUTO BRASILEIRO DE GEOGRAFIA E ESTATÍSTICA (Brazilian
Institute of Geography and Statistics). Brasil – Panorama. Available at:
https://cidades.ibge.gov.br/brasil/panorama. Accessed on: 19 Jun. 2021.
5 The total fertility rates refer to the average nu mber of children produced by each woman
during her fertile years. Fertility at the replacement level (corresponding to a total fertility
rate of 2.1), in turn, is what keeps the population of a constant size. In this regard, see
UNFPA – UNITED NATIONS POPULATION FUND. Situation of the global population
2018 – the power of choice: reproductive rights and demographic transition, p. 13.
Available at: https://brazil.unfpa.org/sites/default/files/pub-pdf/SWOP_2018.pdf.
Accessed on: 19 Jun. 2021.
6 The list is by BRAMANTE, Ivani Contini. Da licença e salário-maternidade à licença-
natalidade-infância e salário -maternidade parental – releitura dos direitos previdenciários
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