Direitos fundamentais e maternidade no cárcere: uma análise da (in)efetividade da proteção jurídica às mulheres privadas de liberdade no sistema penal brasileiro

Abstract

The present study analyzes the (in)effectiveness of fundamental rights of women within the Brazilian penal system, especially for incarcerated mothers and pregnant women. Initially, it addresses a brief historical context of female incarceration, demonstrating its origins and the persistent structural precariousness of detention units, which violate the principle of human dignity and compromise maternal and fetal health. Subsequently, it examines the legal framework of protection, particularly the Collective Habeas Corpus No. 143,641/SP and the insertion of Article 318-A of the Brazilian Code of Criminal Procedure. The jurisprudential analysis reveals a profound gap between the law and its practical application, with a significant resistance from courts to convert preventive custody into house arrest for this group of women. This judicial stance, often based on the delegitimization of the maternal role through moral stereotypes and restrictive interpretations, compromises the constitutional mandate of protection for childhood and motherhood. The study concludes that, despite normative advancements, the prevalence of a punitive culture prevents the full realization of these rights, reinforcing the scenario of rights violation within the prison system. The methodology used in the work is based on the hypothetical-deductive method, through qualitative, bibliographic, and documentary research, drawing upon doctrines, legislation, reports, and judicial decisions pertinent to the theme.