Crianças e adolescentes na previdência social: a proteção integral em xeque

Abstract

This thesis provides a critical analysis of the social security protection of children and adolescents in Brazil from the perspective of the integral protection doctrine. The central research problem lies in a historical and normative paradox: although the Federal Constitution of 1988 and the Statute of the Child and Adolescent (ECA) recognized children and adolescents as subjects of rights and recipients of priority protection, this advancement coincided with the beginning of a cycle of legislative and jurisprudential setbacks in their social security protection starting in the 1990s. The central hypothesis argues that the financial and actuarial balance argument has been used as a rhetorically to marginalize the fundamental rights of a minority that lacks institutionalized political representation. Methodologically, the study employs hypothetical-deductive and historical-normative methods, in addition to an empirical jurisprudential analysis of landmark cases decided by the Brazilian Supreme Court (STF), such as those involving survivor’s pensions, prison inmate family allowance (auxílio-reclusão), and the status of children and adolescents under legal guardianship. The research traces the legal trajectory of childhood, from invisibility to its affirmation as subjects of rights, and draws on guidelines from international organizations (such as the ILO, World Bank, and UNICEF) to pragmatically justify the need for “child-sensitive” social protection systems. It is argued that contributory social security should not be viewed merely as an expense, but as an essential investment in human capital and a tool to combat the intergenerational transmission of poverty. The analysis of the STF's conduct reveals an ambivalent stance, fluctuating between a rights-based approach in cases where social security protection intersects with gender issues and fiscal pragmatism when protection is purely aimed at children. Finally, the thesis presents legislative reform proposals (de lege ferenda) to realize the integral protection doctrine – and, consequently, the principles of absolute priority and the best interests of the child (the latter in its objective sense) – within the social security field, including: the definitive inclusion of children and adolescents under legal guardianship in the list of dependents; the guarantee of a full quota (100%) in survivor’s pensions for children and adolescents; the exclusion of the time limit for benefit applications by those with absolute legal incapacity; the equalization of maternity and paternity benefits; and the creation of complementary social assistance benefits for orphans and children living in poverty. It concludes that the current Brazilian system is not fully child-sensitive, making it urgent to realign social security regulations with the mandates of Article 227 of the Federal Constitution to ensure social justice for future generations and the very sustainability of the national social security model.