Breastfeeding and the Law

Earlier this month, which happens to be Breastfeeding Month, the well-known model Gisele Bundchen ignited a firestorm of controversy regarding her opinion that breastfeeding should become a worldwide requirement by law.

Gisele, clearly passionate about being a new mother, may have over-reached a bit, but her heart was in the right place. She retracted her statement a few days later on her own blog, stating that she did not mean to say it should be a law but that she was just being enthusiastic and that the statement was taken out of context by the press and media outlets. I mention this because I think Gisele has advanced an important conversation regarding the workplace and expression of breast milk.

Gisele Bundchen wrote on her blog. “My intention in making a comment about the importance of breastfeeding has nothing to do with the law. It comes from my passion and beliefs about children. Becoming a new mom has brought a lot of questions, I feel like I am in a constant search for answers on what might be the best for my child. It’s unfortunate that in an interview sometimes things can seem so black and white. I am sure if I would just be sitting talking about my experiences with other mothers, we would just be sharing opinions. I understand that everyone has their own experience and opinions and I am not here to judge. I believe that bringing a life into this world is the single most important thing a person can undertake and it can also be the most challenging. I think as mothers we are all just trying our best.”

Last week I wrote about how to safely store your breast milk while working, or away from your baby, for any reason. This week, my article is about the many challenges women around the world face, both cultural and governmental, when trying to breastfeed their babies.

The month of August is Breast Awareness Month. The United States Department of Health and Human Services is sponsoring a campaign to encourage women to breastfeed. Despite all of the articles and books promoting the importance of optimizing infant health by breastfeeding, 70% of women will start breastfeeding immediately after delivery, and fewer than 20% will still be breastfeeding 6 months later. There still exist numerous cultural and legal barriers that make it very difficult for mothers to exclusively breastfeed. Women often feel nervous and embarrassed when breastfeeding in public and this will often result in abandoning breastfeeding.

A well known legal case in 1981 (Dike v. The School Board) is a perfect example of a discriminating situation that breastfeeding mothers may face.

Case Study

Janice Dike was a grade school teacher in Orange County, florida, who was banned from breastfeeding her child during her free lunch period. She claimed that her breastfeeding did not interfere with her teaching or her other school and work activities. The local court ruled against her, saying that it was illegal to breastfeed at the school. On appeal to the Fifth Circuit Court of Appeals, this decision was reversed. The decision stated that breastfeeding is a Constitutional right that cannot be restricted by the states. However, this ruling was again reversed in the case of Shahar v Bowers (1997) in which the Court stated that the Constitution does not address private conduct but rather that State laws should control a woman’s basic right to breast feed her child.

What are the current laws?

There are Federal laws and State laws that protect the rights of breastfeeding mothers and provide a socially supportive environment. Mothers must be aware of the legislation that exists in their particular state to avoid feelings of discrimination and to alleviate any anxiety they may have in public places. States vary in their protection of women.

  • Forty-four states (and the District of Columbia and the Virgin Islands) have laws specifically allowing women to breastfeed in public and private places.
  • Twenty eight states (including the district of Columbia and the Virgin Islands) have specific laws exempting breastfeeding from public indecency laws.
  • Twenty four states (including the District of Columbia and Puerto Rico) have laws that protect women when breastfeeding in the workplace.
  • Twelve states (including Puerto Rico) exempt breastfeeding women from jury duty.
  • Five states and Puerto Rico have breastfeeding education campaigns.
  • Individual states also have unique laws. Places like New Jersey and Hawaii allow a woman to seek legal recourse if she is unfairly discriminated against for public breastfeeding and states like Missouri allow breastfeeding only in certain locations and times and with appropriate discretion.
  • Women are permitted to feed in any federal owned building or property, regardless of state (passed in 1999).
  • Only Virginia allows women to breastfeed on any land or property owned by the State.

In my own state, Connecticut, there is a law that protects a woman’s right to breastfeed her child in any public place and employers must allow you to breastfeed or express milk at work, even if it is a very small firm. This means that your employer must allow you to breastfeed or express milk during your meal or break period and your employer must make a reasonable effort to provide a room or comfortable location to do this (not a toilet stall).

Federal Laws

In March 2010, President Obama signed the Patient Protection and Affordable Care Act which now requires an employer to provide reasonable break time for an employee to express milk for the purposes of nursing or expressing milk for her child for one year. The employer has no obligation to compensate the employee for this time. The employer must also provide a reasonable space to do this (not a bathroom). An employer of fewer than 50 employees is are not required to do this if it imposes undue hardship. Also, this law is not meant to preempt any state law that provides even greater protection for a nursing employee.

In the past, other bills have been proposed in Congress to try to protect breastfeeding rights that provide for tax incentives for businesses to create lactation lounges for employees, minimum standards for quality control for breast pumps, and tax deductions for breastfeeding equipment and services. However, these proposals have not been passed.

US Policy on Breastfeeding

In the larger arena, in world policy, the United States has not been considered one of the world leaders in policy to promote breastfeeding.

Important international policies in the past included:

  • The UN convention in 1989 on the Rights of the Child which was ratified by every country in the world except the United States and Somalia. This convention provided a basis for governments, international agencies and other organizations to formulate programs to provide for supporting, promoting, and protecting breastfeeding.
  • In 1989, WHO and UNICEF issued a joint statement entitled Protection, Promotion, and Support of breastfeeding: Ten Steps to successful Breastfeeding that calls on hospitals and health care facilities to adopt practices to encourage and promote breastfeeding.
  • 1990, The Innocenti Declaration was created by participants of WHO/UNICEF policy makers meeting on breastfeeding held in Florence Italy that set targets for governments to implement by 1995 for establishing national breastfeeding coordinators and committees and ensuring appropriate maternity services protecting the breastfeeding rights of working women.
  • The Baby-Friendly Hospital Initiative (BFHI) was launched in 1991 by WHO and UNICEF to call for action for all maternity services, freestanding or hospital-based, to become centers for excellence in breastfeeding support. Accreditation is granted when a center doesn’t accept free or low cost breast milk substitutes, does not provide feeding bottles or artificial nipples and has implemented the ten step program to support breastfeeding. As of 2007 there were only 56 hospitals and birthing centers in the US holding the BabyFriendly certificate.
  • The United States breastfeeding Committee was established in 1998 (USBC) which works on advocacy issues at the Federal level. This is a group of 40 organizations which promote, protect, and support breastfeeding in the United States by focusing on national policy issues. The Committee attempts to promote implementation of the Innocenti goals of 1990 for establishing a national breastfeeding committee.
  • In 2001 the United States Surgeon General issued the HHS Blueprint for Action on breastfeeding to encourage, market and support breastfeeding in the community and allow for the health care system of the US to support the training of health care professionals on the basics of lactation counseling and management within hospitals and maternity centers, and to support facilitation of breastfeeding for women who return to the workplace.