A vida gerada no cárcere: análise sobre as condições do encarceramento de mulheres gestantes e no período puerpério à luz do HC 143.641

Abstract

This paper aims to analyze the conditions of pregnant women and women in puerperium period incarcerated in Brazil before and after the understanding signed by the Supreme Court. The Habeas Corpus 143.641/SP has in its scope the guarantee of fundamental rights to the Brazilian population, which provides for the possibility of substitution of preventive detention by home detention for pregnant women, or women in puerperium period, or who are breastfeeding, and mothers of children up to 12 (twelve) years old. The understanding is of utmost importance when we are facing the Brazilian female prison system in the Brazilian context, which, according to data from INFOPEN, the Brazilian female prison population is the fourth largest in the world, and about half of them are still awaiting trial, i.e., they are temporary prisoners. The fact is that motherhood is part of the female nature, in which gestating a being is a challenge, and when one is in prison, this challenge becomes almost impossible due to the conditions that mother and child find inside the penitentiary. As a result, a set of laws has ensured imprisoned mothers and their babies minimum conditions of assistance, with the purpose of guaranteeing rights, as well as partially establishing the constitutional principle of family life, which defends that children have the right to live with their parents, trying to reverse the fact that penal institutions were thought and created under the male perspective. That said, although the legislation and the Supreme Court's decision, together with the legislation, demonstrate a position and a path, the reality of people in this condition can be totally different, in which constitutional rights can be constantly violated.