A proteção dos direitos fundamentais de mulheres gestantes e seus nascituros no cárcere: uma análise da Resolução nº 369/2021 do CNJ à luz da precariedade do sistema prisional brasileiro

Abstract

This dissertation presents a critical analysis of the impacts of deprivation of liberty on pregnant women and their unborn children within the Brazilian prison system, taking into account the structural, institutional, and symbolic precariousness that characterizes the penal system. The research adopts an intersectional and transdisciplinary approach, focusing on how the State, by failing to address the specific needs of pregnancy and motherhood in prison, contributes to the systematic violation of fundamental rights. At the core of this study is the analysis of a social innovation in the legal field: CNJ Resolution No. 369/2021, together with two landmark precedents from the Brazilian Federal Supreme Court (HC 143.641/SP and HC 165.704/DF). The research seeks to examine the potential of these normative and jurisprudential frameworks to ensure human rights and promote gender justice within the penal context. The methodology is based on documentary analysis of legal norms, institutional reports, and a critical review of academic literature, enabling a comprehensive understanding of the persistence of a State of Unconstitutional Affairs in the prison system. The study reveals how motherhood in prison remains marked by social exclusion, institutional violence, and the absence of effective public policies. Grounded in a feminist, anti-racist, and decolonial epistemology, this dissertation proposes avenues for the humanization of penal responses and for the development of a legal doctrine that is sensitive to structural inequalities that disproportionately affect incarcerated women in Brazil.