ACCESS TO HUMAN MILK BANKS AS A FUNDAMENTAL HUMAN RIGHT: THE INVISIBILITY OF ADOPTED AND ORPHANED BABIES OUTSIDE THE HOSPITAL SETTING

Abstract

The article examines the exclusion of adopted and orphaned newborns who are not hospitalized from access to pasteurized human milk provided by public milk banks, interpreting this gap as a violation of the fundamental human rights to life, health, and adequate food. Although Brazil has the largest network of human milk banks in the world, its regulations restrict distribution to hospitalized infants, which results in indirect discrimination against children in vulnerable situations outside hospital settings. To address this issue, the study adopts a qualitative and exploratory methodology based on bibliographical and documentary research, consulting legislative, jurisprudential, and doctrinal sources. The theoretical framework combines the constitutional conception of human dignity and comprehensive protection of childhood (Sarlet, Bandeira de Mello), the bioethical foundations of equity and social justice (Sen, Nussbaum), and the specialized literature on breastfeeding as a human and social right (Silva et al., Pereira, Vilar et al.). The analysis is conducted through content analysis techniques, aiming to identify the exclusionary effects of the current normative structure and to propose legal and policy guidelines for expanding access to human milk. The study concludes that the realization of the rights to adequate food and material equality requires the reformulation of public policies on human milk banks, with the explicit inclusion of adopted and orphaned infants as priority beneficiaries, in accordance with the principles of dignity, non-discrimination, and comprehensive child protection.