Maternidade em cárcere, filhos encarcerados?

Uma análise jurisprudencial dos direitos dos filhos de mulheres presas à luz da legislação constitucional e infraconstitucional

Abstract

The article examines, in light of Brazilian constitutional and infra-constitutional law, the rights of children whose mothers are incarcerated, shifting the legal analysis from the imprisoned woman to the child as a subject of rights. Based on a qualitative and retrospective study of Supreme Federal Court (STF) decisions from 2018 to 2022, fifteen rulings were analyzed concerning the substitution of preventive detention with house arrest for pregnant women, breastfeeding mothers, and mothers of children under twelve. Findings reveal that the STF has consistently emphasized the need to align criminal policy with the principle of comprehensive child protection and the best interests of the child, preventing them from suffering an “indirect penalty.” Jurisprudence shows that even in cases of recidivism, drug trafficking within the household, or absence of de facto motherhood, the Court generally upholds the child’s right not to be harmed by the mother’s conduct. The study highlights the importance of legal frameworks such as the Federal Constitution (arts. 5, XLV, and 227), the Child and Adolescent Statute (ECA), the Early Childhood Statute (Law 13.257/2016), Law 13.769/2018, and the Bangkok Rules. It concludes that replacing preventive detention with house arrest must be understood as a constitutional and humanitarian requirement for child protection, alongside the strengthening of public policies that ensure integral development.