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Publication date: 21.04.2024
active and purposeful military lawyer with more than 4 years of experience
1. Who has the right to leave in connection with the adoption of a child?
2. Under what conditions is it provided?
3. What is the duration of such leave?
In order to bring the Code of Labor Laws of Ukraine (hereinafter referred to as the Labor Code) and the Law of Ukraine dated November 15, 1996 No. 504/96-VR "On Vacations" (hereinafter referred to as Law No. 504) into compliance with the requirements of the Family Code of Ukraine (hereinafter referred to as the Family Code of Ukraine) regarding the adoption of children aged 2 months and older and ensuring the equal rights of all adoptive parents to receive a one-time paid leave in connection with the adoption of a child, the Law of Ukraine dated May 30, 2019 No. 2728-VIII "On Amendments to Certain Legislative Acts of Ukraine Regarding the Provision of Leave" was adopted to adoptive parents when adopting an orphan child, a child deprived of parental care" (hereinafter - Law No. 2728), which entered into force on June 21, 2019.
Previously, Article 182 of the Labor Code established women's right to leave in connection with the adoption of a newborn child directly from the maternity hospital. At the same time, this contradicted the requirements of Part 1 of Article 209 of the Civil Code and Article 28 of the Law of Ukraine dated January 13, 2005 No. 2342-IV "On Ensuring Organizational and Legal Conditions for the Social Protection of Orphans and Children Deprived of Parental Care", which provide that a child abandoned in a maternity hospital, other health care institution, or who was refused to be taken from them by her parents or other relatives, may be adopted after she reaches the age of two months.
Therefore, in Ukraine, the adoption of a newborn child directly from the maternity hospital is impossible.This is due to the fact that parents may reject the child while in an affective state (for example, if the child is unwanted). The reason for abandoning the child may also be that the grandfather, grandmother or other relatives of the child were not informed about the child's birth. The two-month period is necessary in order to carry out appropriate work with parents and relatives regarding the return of the child to the biological family.
Thus, a conflict arose in the legislation: in accordance with the second part of Article 17 of Law No. 504, a person who adopted a newborn child directly from the maternity hospital had the right to leave in connection with the adoption, but this norm was not implemented, as it conflicted with other legislative acts , and in the first part of Article 181 of Law No. 504, the right to the specified leave was established only for persons who adopted a child after the child reached the age of three.
According to statistical data, the following were deprived of the right to leave in connection with adoption: in 2016, 907 adopters of children, in 2017, 893 adopters, in 2018, 773 adopters.
It should be noted that in accordance with Part 4 of Article 232 of the Civil Code of Ukraine, adoption gives the adopter rights and imposes duties on him in relation to the child he adopted, to the same extent that parents have in relation to the child. Therefore, all parents had the opportunity to use leave in connection with pregnancy and childbirth, and adoptive parents of children aged 2 months to 3 years did not have the right to the corresponding leave.
With the entry into force of Law No. 2728, all adoptive parents, regardless of the gender and age of the adopted child, have the opportunity to receive leave in connection with the adoption.This will facilitate the adaptation of the child in the family, will contribute to the establishment of social and emotional ties between the child and his new parents, and the formation of mutual attachment, respect and love.
According to the amendments made to Article 182 of the Labor Code, leave in connection with the adoption of a child is granted on the condition that the application for its provision is received no later than 3 months from the date of entry into force of the court decision on the adoption of the child. Corresponding changes were made to Article 18-1 of Law No. 504.
It should also be remembered that according to the first part of Article 23 of Law No. 504, the expenses related to the payment of vacations in connection with the adoption of a child are carried out at the expense of the funds of enterprises, institutions, organizations designated for payment of labor, or at the expense of funds of an individual in which employees work under an employment contract. However, based on the above statistical data, the projected increase of adopters in Ukraine in the coming years will not exceed 1,000 people. It is not critical for employers.
Finally, it should be noted that the Cabinet of Ministers of Ukraine approved the National Strategy for Reforming the System of Institutional Care and Education of Children for 2017-2026 by Order No. 526 of August 9, 2017. We hope that changes in the provision of leave in connection with the adoption of a child will contribute to its implementation.
