Salário-maternidade: perspectiva histórica e implicações jurídicas das ações diretas de inconstitucionalidade 2110 e 2111

Abstract

This study aims to critically analyze the challenges to the effective enforcement of the right to maternity benefit, broadly examining the evolution of this social security provision in Brazil, from its inception to the most recent developments. In such context, the research focuses particularly on the decision issued by the Brazilian Supreme Federal Court (STF) on March 21, 2024, which addressed the requirement of qualifying period within the scope of Direct Actions of Unconstitutionality (ADIs) 2110 and 2111. Based on a historical and legislative analysis of the fundamental right to maternity and, consequently, of the corresponding social security benefit, the study seeks to understand the recente changes in the Brazilian legal framework, providing an in-depth reflection on their practical implications. To that end the research adopts inductive and observational scientific methods, combined with a qualitative approach, with emphasis on bibliographical and documentary research. The results obtained through the survey of decisions issued by the Federal Regional Court of the 5th Region (TRF5) reveal a trend among first-instance judges not to immediately apply the understanding established by the Supreme Court in ADIs 2110 and 2111. In turn, the TRF-5 has generally acted as an important harmonizing authority, overturning several decisions that persist in requiring minimum contributions from self-employed and voluntary insured women. It is concluded that, although the Supreme Court’s decision represents undeniable progress in the protection of maternity, its full effectiveness depends on complementary measures, especially legislative changes that reduce the margins for interpretative divergence.