Dar à luz e se tornar órfã(o): discriminação, convivência familiar e a institucionalização de crianças recém-nascidas

Abstract

This dissertation studies the institutionalization of newborn children, grounded in the drug use or in the street situation of the person who gave them birth, in the light of the fundamental rights protection system, as shaped by the 1988 Constitution. We have traced an overview of the disputes about the meanings of children’s and their family members’ rights in Belo Horizonte, especially from the publication of the Recommendations 05 and 06 of 2014, from the 23rd Childhood and Youth Prosecutor's Office, as well as the various documents that register the resistance of public servants to carry out orders that could violate those families rights. We placed this situation in perspective by visualizing it in a historical repetition context of the removal of babies from their families, that has in it’s background a rationality that intends to rank and dominate certain human groups, which can be found in eugenicist, racist and patriarchal thoughts. To contribute to our analysis, we have examined the fundamental rights in tension on this dispute: the right to equality and non-discrimination and the right to experience family life, in the light of the best interests of the child. We realized that there is a assumption that the best interest of children, when it comes to the right to experience family life, is to remain with their original family and that we can only overcome this assumption when the requirements for establishing an exceptional occurrence are fulfilled: the existence of a family member action or omission that leads to a threat or to a violation of the child’s rights, the exhaustion of other protection that could reverse this situation and the special seriousness of the threat or violation. This requirements dialogue with those which are necessary to avoid a discriminatory treatment: it must exist a cause-effect relationship between the given treatmen and a lawful purpose. When we begin the analysis of the case under examination and the scrutiny of certain assumptions about the practice of parental functions by women/people who give birth that use drugs or live in the streets, we conclude that it is not possible to say that these people, when taking care of their children, will necessarily subject them to a threat or violation of their rights. What is more, we realize that the assumption that those people are not capable of being “mothers” is grounded in an hegemonic and exclusionary model of motherhood, which is unachievable for black, poor, drug user women/people who give birth. We verify, at last, that the institutionalization of newborn children, grounded in the drug use or in the street situation of the person who gave them birth, is incompatible with the fundamental rights protection system.