INFANT RESERVE IN INTERNATIONAL ADOPTION: PROTECTION OR OBSTACLE TO THE CHILD’S BEST INTEREST?

Abstract

This article critically analyzes the institute of international adoption in Brazil, focusing on the "infant reserve," a legal requirement that prioritizes the placement of children in national families before considering foreign applicants, as per art. 51, § 1, II, of the Child and Adolescent Statute (ECA). The objective is to investigate whether this primacy, based on the protection of cultural identity, is compatible with the principle of the best interest of the child, especially for those with profiles that are difficult to place in Brazil—such as older children, sibling groups, and those with health conditions. The rigid application of this rule can become a bureaucratic obstacle, prolonging the stay of children in shelters and compromising their fundamental right to family life. It is concluded that international adoption should not be treated as a mere subsidiary alternative but as a legitimate possibility, advocating for a more flexible interpretation of the rule so that the Judiciary can, in each specific case, prioritize securing a safe and affectionate home, even if abroad, in true observance of the infant's best interest.