Licença para cuidar: o princípio da parentalidade responsável na perspectiva civil-constitucional e a sua reparação pela responsabilidade social empresarial

Abstract

It aims to analyze the juridical-philosophical value of care for the existence and free development of the human personality in parent-child relationships. Based on a principle related interpretation of the main section of art. 227 and art. 226, § 5, both of the Federal Constitution, and of art. 22 of Law 8069/90, a hermeneutic decomposition of care in two dimensions was performed based on the civil-constitutional methodology. In the first, it was recognized as a right-duty held by children and assigned to parents, and in the second, as a right to care held by parents. The research also addressed the jurisprudential disagreement regarding the concept of the right to care expressed in judgments of the Superior Court of Justice in Special Appeals (REsp) Nos. 1.579.021/RS, 1.887.697/RJ and 1.159.242/SP, as well as in the understanding of the Supreme Court observed in Extraordinary Appeal (RE) No. 898060-SC, and its link to the right to family coexistence. Having verified the correlation of the right to care with responsible parenthood, the principle was also examined in a deeper way, proving to be structured in two freedoms: the fundamental right to family planning and the fundamental right to care for the offspring. Through a historical-comparative study of child protection and maternity and paternity protection in the Brazilian legal system and in international declarations, with a time frame starting in the beginning of the 20th century, which even today denounce traditionally anti-democratic behavior in families. It was observed that in the current state of the art, they also reinforce supposed gender roles besides being unfit to accommodate all family arrangements, whether by biological or socio-affective bonds, to the detriment of the social function of families in promoting the dignity of all its members and the search for fully employment. From this perspective, the approach is constituted by means of a deductive methodology of bibliographic review, whose analysis of the theme was emphasized in Constitutional Law and Civil Law, and, to a lesser extent, in the panorama of Labor Law, Social Security Law, and Business Law, comprising the study of scientific journals, specific works, reports, and international research, in addition to master's and doctoral theses. Furthermore, the construction was based on the comparative method, analyzing European, American, Indian, and New Zealand legislative texts that are relevant to the thesis' problematic, with the purpose of identifying the provisions and principles that ground and guide the legal discipline of the issue. Finally, after analyzing the proposals for legislative changes aimed at complying with art. 7, XIX, of the Federal Constitution, solutions were found in comparative law. The research also has a propositional nature based on stimulating the participation of other social actors, the companies, based on good practices of Corporate Social Responsibility, supported by the Theory of Stakeholders, to safeguard the right to care in the exercise of responsible parenthood.