A Look at Enacting Breastfeeding Legislation
By Elizabeth N. Baldwin, JD
April 4, 1999
We provide articles
from our publications from previous years for reference for our Leaders and
members. Legal information changes rapidly over time. Consequently, much of the information in this article is no longer relevant or accurate and this article should not be used as a reference.
In the United States, breastfeeding legislation has been enacted nearly
one-third of the states over the past six years, and many more states
have pending bills. This article gives some pointers on enacting legislation.
In looking at legislation, first look at the language of the case of
Dike v. Orange County School Board, 650 F.2d 783 (5th Cir., 1981) .
This case sets forth that mothers have a constitutional right to breastfeed.
In that case, a teacher wanted to nurse her baby on her duty free lunch
break. The school claimed that insurance provisions prohibited teachers
from bringing their children onto school property, and also prohibited
teachers from leaving the school grounds during the day. The trial court
ruled that the mother had no right to breastfeed. In Dike, the appeals
court reversed the case and remanded it for a new trial, stating that
breastfeeding is a protected constitutional right. "Breastfeeding
is the most elemental form of parental care. It is a communion between
mother and child that, like marriage, is "intimate to the degree
of being sacred," Griswold v. Connecticut, 381 U.S. at 486, 85
S. Ct. at 1682, 14 L. Ed. 2d at 516. Nourishment is necessary to maintain
the child's life, and the parent may choose to believe that breastfeeding
will enhance the child's psychological as well as physical health. In
light of the spectrum of interests that the Supreme Court has held specially
protected we conclude that the Constitution protects from excessive
state interference a woman's decision respecting breastfeeding her child."
650 F.2d at 787
Constitutional rights are not absolute, and often collide with legitimate,
recognized interests. Sometimes the courts must balance individual rights
with state interests. In the Dike case, the trial court determined that
the state had a legitimate interest in restricting the teacher's comings
and goings because of certain school policies . Although the appellate
court ruled that mothers have a constitutional right to breastfeed,
Mrs. Dike did not have the right to leave school to go home and nurse
her baby, or to bring her baby on to school grounds. Keep in mind that
this constitutional right may not apply to a mother who is breastfeeding
in a private location, such as a store or restaurant. And although there
are some other legal theories upon which the right to breastfeed can
be based (discrimination laws, equal protection, etc.), breastfeeding
legislation is the best way to clarify the right that women have - to
feed their babies where they do.
Can states restrict the right to breastfeed? We think not! Women have
a constitutional right to breastfeed, and no one has the right to discriminate
or segregate against breastfeeding mothers. However, some states initially
considered limiting a mother's right to breastfeed, while considering
legislation that would clarify a mother's right to breastfeed in public.
For instance, New Jersey's Assembly initially passed an amendment to
their bill that would allow mothers to breastfeed in public only if
there was no designated area for them to go. This amendment was rejected
by the NJ Senate, and caused quite an outcry from the public and press.
This is why the City of Philadelphia enacted an Ordinance that not only
prohibited discriminating against breastfeeding mothers, but expressly
prohibited segregating breastfeeding mothers. (Amending Section 9-1105
of the Fair Practices Code, 1996). They felt strongly that it is segregation
to tell a mother that she has to go to a certain place or area to breastfeed.
Some other states considered requiring a mother to breastfeed discreetly.
However, this legislation restricts the right mothers already have,
and would impose an arbitrary and subjective standard on breastfeeding.
The purpose of legislation is to clarify the mother's right, in the
hopes that it will increase the incidence and duration of breastfeeding.
Restrictions would defeat the entire purpose of breastfeeding legislation,
and could deter a mother from making this healthy choice!
Many people complain that breastfeeding legislation is not necessary,
or that it is a shame that it necessary to enact legislation concerning
such a basic act of nurture. However, this is looking at the cup half
empty rather than half full. Any legislation that deals with breastfeeding
is a positive step, and a statement that recognizes the importance of
breastfeeding. Breastfeeding legislation accomplishes what it intends
to - to increase the incidence and duration of breastfeeding, by helping
to change the public opinion about breastfeeding. And we can use breastfeeding
legislation to help accomplish more, by knowing what laws exist, why
they exist, and by spreading this knowledge. It is very important that
our society learns that breastfeeding is not just a lifestyle choice,
but a significant health choice for mother and baby. Educating people
about this can do much to promote breastfeeding, and to help legislation
succeed.
Different types of legislation can affect different breastfeeding issues.
Certainly the most common is legislation regarding breastfeeding in
public. This section will look at various types of breastfeeding legislation,
with pointers on how they could be approached.
The most popular breastfeeding legislation, dealing with the right
to breastfeed in public, usually has a preamble to the bill that contains
information on why it is important. Florida's bill was the first to
do this, and several other states have either used similar language,
or updated Florida's information to make it more current. A preamble
to a bill could contain the following language. Note that most of the
language came from Florida's original bill and was updated, as in Utah's
bill.
The legislature finds and declares that:
1. The World Health Organization and UNICEF seek to increase the incidence
and duration of breastfeeding globally, as set forth in the Innocenti
Declaration on the Protection, Promotion and Support of Breastfeeding,
adopted in 1990 by 32 governments and ten United Nations agencies. The
Innocenti Declaration states: "As a global goal for optimal maternal
and child health and nutrition, all women should be enabled to practice
exclusive breastfeeding and all infants should be fed exclusively on
breast milk from birth to four to six months of age. Thereafter, children
should continue to be breastfed while receiving appropriate and adequate
complementary foods for up to two years of age or beyond. This child
feeding ideal is to be achieved by creating an appropriate environment
of awareness and support so that women can breastfeed in this manner."
2. The World Health Organization and the UNICEF have established as
one of their major goals for the decade the encouragement of breastfeeding.
Despite their recommendations, statistics reveal a declining percentage
of mothers who are choosing to breastfeed their children;
3. Many new mothers are now choosing to use formula rather than to
breastfeed even before they leave the hospital, and only a small percentage
of all mothers are still breastfeeding when their children are 6 months
old;
4. Breastfeeding provides significant health benefits to both the mother
and child. Breastfeeding provides maternal protection from breast cancer,
osteoporosis, urinary tract infections, and other cancers. A recent
study indicates that if all women breastfed all their children for two
years, that breast cancer in the United States could decline by 25%.
5. Studies now show that babies who are not breastfed have higher rates
of death, meningitis, childhood leukemia and other cancers, diabetes,
respiratory illnesses, bacterial and viral infections, diarrhoeal diseases,
otitis media, allergies, obesity and developmental delays. Breastfeeding
may raise a baby's IQ.
6. The social constraints of modern society weigh against the choice
of breastfeeding and lead new mothers with demanding time schedules
to opt for formula feeding to avoid embarrassment, social ostracism
or criminal prosecution; and
7. Any genuine promotion of family values should encourage public acceptance
of this most basic act of nurture between a mother and her child, and
no mother should be made to feel incriminated or socially ostracized
for breastfeeding her child.
In looking at giving a mother the right to breastfeed, the following
could be used. Language in parenthesis is optional.
Breastfeeding is an important and basic act of nurture which must be
encouraged in the interests of maternal and child health (and family
values). A woman has a right to breastfeed in any location, public or
private, where she has the right to be (with her child) (irrespectively
of whether the (nipple)(areola) is exposed during or incidental to breastfeeding).
Some suggestions:
1. New York's approach of creating a new law under a civil rights act
provides the most protection for mothers, as it gives them a remedy
for violating this law. However, this is not always necessary to accomplish
the goal of encouraging breastfeeding. Most establishments and people
that initially try to tell mothers to leave or stop breastfeeding will
retract their position when educated on this important health choice.
Also, some states may have more difficulty enacting legislation that
is this strong.
2. Note that New York did not include the language "Breastfeeding
is an important and basic act of nurture, …" into their law
as Florida did, but only placed this language in the bill's preamble.
The law itself contained only language concerning the right to breastfeed
where a mother has the right to be. It is more beneficial to include
this other language as well (as Florida did), as then the encouragement
of breastfeeding could apply in legal situations other than breastfeeding
in public, such as family law situations.
3. Some states may be concerned that providing a legal remedy would
result in a rash of litigation. Although this has not been shown to
be the case, an alternative could be to place the law under the health
statutes, as Florida did. Note that we are not aware of any litigation
that has resulted from breastfeeding legislation, even in New York who
provides the strongest remedy.
4. Other states have preferred to just clarify the fact that breastfeeding
is not indecent exposure, and thus specifically excluded breastfeeding
from their criminal statutes. Some of those states included language
in the criminal statutes also specifically giving mothers the right
to breastfeed where they may be with their babies.
5. There is no reason to use the words ‘baby' or ‘infant'.
As women only breastfeed human children, why say anything at all? Utah's
language referred to ‘a mother's breastfeeding', rather than raising
the issue of how old the child is. Using the word infant or baby may
imply that a mother cannot breastfeed her toddler. Given the current
recommendations to breastfeed until age two or beyond, we do not want
to create a mistaken impression. Either the word "child or children"
should be used, or the term should be eliminated altogether, as was
done in Utah.
6. Some states have feared if they included language which expressly
sets forth the mother does not have to breastfeed discreetly (such as
when the nipple or areola is exposed during or incidental to breastfeeding),
that there may be a rash of women exposing themselves at beaches, or
other places. Although this fear is completely unfounded as no state
has had a problem with exposure after enacting this type of law, there
is also no reason why one should feel compelled to include this language.
Both Texas and Virginia decided to eliminate this language. Practically
this has no effect; the legislation still accomplishes its goal.
7. A sensible alternative to setting forth a right to breastfeed, would
be to enact a simple law that states "Breastfeeding is an important
and basic act of nurture that must be encouraged in the interests of
maternal and child health". This type of law would then require
encouragement of breastfeeding is all situations.
8. Some have considered enacting laws that required mothers to breastfeed
discreetly. California considered requiring mothers to breastfeed ‘as
discreetly as the mother deemed appropriate'; Georgia, breastfeed ‘modestly'.
Arguments in favor of this claim that since it is subjective, it will
not affect mothers. However, this is not true. Such language would defeat
the entire purpose of legislation, to encourage mothers to make this
healthy choice. These words of limitation not only take away the right
women already have, but would have a chilling effect on mothers if put
into law. We would be saying to a mother that she can breastfeed in
public but only if she does so modestly. This could cause great distress
to mothers not knowing how to satisfy such a subjective standard. It
would also open any mother up to allegations that she was not doing
it discreetly enough, and thus the establishment would be entitled to
remove her. It would be better to have NO legislation, than to enact
a law that would take away the right that already exists.
1. Breastfeeding is an important health choice that women make for
themselves and their babies. Each mammal's milk is species specific.
Human milk is clearly the most complete and ideal food for the growth
of healthy human babies. Breastfeeding uses the resources of the mother's
body to create perfect and optimal nourishment for the baby, and provides
immunological benefits to the child that are only available from human
milk. Studies have proven that breastfed babies are healthier than those
babies who are not breastfed, and less likely to become ill with gastrointestinal
infection, diarrhea, respiratory infections, ear infections and serious
diseases, such as pneumonia and meningitis. Breastfed babies are one-half
as likely to become sick in the first year of life. Breastfeeding also
reduces the mother's risk of breast, ovarian and cervical cancer, osteoporosis,
and urinary tract infections. See LLLI's Breastfeeding Fact Sheets which
set forth many of the studies documenting the health benefits of breastfeeding.
2. The savings of breastfeeding a baby are just now being researched.
Families who breastfeed have fewer health care claims. Based on the
unequivocal studies that show breastfeeding reduces the risk of many
illnesses, it is logical to conclude that an increase in breastfeeding
rates can save lives and have a significant impact on our national health
care budget. Breastfeeding should be thought of as a low cost health
improver for both mother and baby. Conversely, formula feeding should
be thought of as a high cost health degenerator for mothers, babies
and society. It is our tax dollars that pay for the consequences of
feeding babies a milk designed for baby cows, or a milk designed from
a plant.
3. The World Health Organization and UNICEF have now made breastfeeding
a priority issue and are strongly encouraging employers globally, including
those in the United States, to facilitate the continuation of breastfeeding
when women return to work. Throughout the past few years, many large
employers have set up lactation support for their employees, including
providing education regarding the benefits of breastfeeding, and assistance
in handling of breastfeeding problems, as well as difficulties often
experienced by breastfeeding mothers in the workplace. In 1993, the
World Alliance for Breastfeeding Action (WABA) prepared an Action Folder
entitled "Women, Work and Breastfeeding: Everyone Benefits!",
in support of World Breastfeeding Week, celebrating the signing of the
Innocenti Declaration. (Available from LLLI). This document sets forth
reasons why women should breastfeed when they return to work, as well
as providing tips for successfully combining work and breastfeeding.
4. Other studies indicate that women who continue to breastfeed once
returning to work miss less time from work because of baby-related illnesses,
and have shorter absences when they do miss work, compared with women
who do not breastfeed. (See "Comparison of Maternal Absenteeism
and Infant Illness Rates Among Breast-feeding and Formula-feeding Women
in Two Corporations" by Rona Cohen, Marsha B. Mrtek, and Robert
G. Mrtek, published in the American Journal of Health Promotion , Nov/Dec
1995, Vol. 10, No. 2.) Also, one study indicates that worksite lactation
programs can increase breastfeeding rates among employed women to a
level comparable to rates among women not employed outside the home.
(See "The Impact of Two Corporate Lactation Programs on the Incidence
and Duration of Breast-Feeding by Employed Mothers" by Rona Cohen
and Marsha B. Mrtek; American Journal of Health Promotion, July/August
1994, Vol. 8 No. 6.) Both of these studies were done by Medela, Inc.
Other studies may be released in the near future; check with the PL
Department for information on these.
5. Both Texas and Florida have developed breastfeeding support policies
for state employees, recognizing that continuing to breastfeed once
returning to work is beneficial not only to the mother and baby, but
the employer and society at large. For instance, Florida Statutes, section
383.018 (1994) provides: "The Legislature recognizes a mother's
responsibility to her job and to her child when she returns to work
and acknowledges that a woman's choice to breastfeed benefits the family,
society-at-large, and the employer… The department shall develop
written policies supporting breast-feeding practices for the workplace
which address issues including work schedule flexibility; scheduling
breaks and work patterns to provide time for milk expression; provision
of accessible locations allowing privacy; access nearby to a clean,
safe water source and sink for washing hands and rinsing out any needed
breastpumping equipment; and access to hygienic storage alternatives
in the workplace for the mother's breastmilk." Fla.Stat. sec. 383.015.
Nearly identical language is included in Texas Health and Safety Code,
sections 165.031-033 (1995). Although these actions by the legislature
point out the importance of breastfeeding, apparently neither state
has actually implemented such policies for their state employees. However,
Texas became the first state in the nation to provide an incentive to
the private sector to encourage women to continue breastfeeding when
they return to work. Texas Health & Safety Code, section 165.003
(1995).
6. Minnesota recently enacted the most progressive legislation so far,
in that employers there are required to provide mothers with reasonable
unpaid break time to express milk and a room or other location (other
than a toilet stall) to express in privacy.
7. California enacted
Assembly Concurrent Resolution #155, which encourages the State of California
and California employers to strongly support and encourage the practice
of breastfeeding by supplying breastfeeding mothers with adequate facilities
in which to breastfeed or express milk.
8. U.S. Congresswoman Carolyn Maloney (N.Y.) drafted a federal bill,
previously entitled
"New Mothers' Breastfeeding Promotion and Protection
Act".
This bill, which supports breastfeeding by new mothers and encourages
employers to support workplace lactation programs, is being resubmitted
as separate bills plans to introduce four federal breastfeeding bills
to Congress during the 1999 legislative session. If passed, these bills
would provide a tax credit for employers who set up a lactation location,
purchase or rent lactation or lactation related equipment, hire a health
professional, or otherwise promote a lactation-friendly environment;
would clarify the Pregnancy Discrimination Act to ensure that breastfeeding
is protected under civil rights law; would require the FDA to develop
minimum quality standards for breast pumps; and would ensure a woman's
right to breastfeed her child anywhere on federal property that she
has a right to be with her child. Note that the section that provided
mothers with unpaid break time to breastfeed has not been resubmitted.
There was too much controversy about this portion of the bill, and it
is feared that this might undermine the other portions that have a better
chance of being passed.
9. In order for women to successfully continue breastfeeding when they
return to work, it is necessary that they are able to express milk during
the day in a clean and private location, and to breastfeed the baby
both before going to work, and upon coming home from work on a daily
basis. A woman's milk supply is directly related to how much stimulation
her breasts receive. If a mother is unable to breastfeed or pump sufficiently,
she will gradually lose her milk supply, which can result in the baby
weaning prematurely.
10. In the event that a mother is unable to express milk during the
day, it is likely that her breasts will become engorged. This can result
in milk leaking onto her clothing, and developing plugged ducts, which
can lead to mastitis, or a breast infection, requiring the use of antibiotics
and bed rest.
Both Florida and Texas amended sections of the nutrition counseling
statutes (which apply to WIC participants) requiring encouragement of
breastfeeding. This language is positive, as in some of these programs
breastfeeding is not encouraged at all. This is an easy way for the
state to save money. A study from Colorado indicated that the national
WIC program could save $9.3 million a month in lower food package costs
alone if all mothers breastfed their infants. (See "Paying Attention
to the Bottom Line: New Evidence for the Cost-Effectiveness of Breastfeeding",
Action News, Winter 1997, Action for Corporate Accountability, Washington,
DC).
Florida is the only state that enacted legislation so far regarding
Baby-Friendly Hospital Initiative. This law would allow hospitals to
advertise themselves as Baby-Friendly if they comply with 80% of the
requirements to become a Baby-Friendly Hospital. Other states have not
copied this language, as it could undermine current efforts in the United
States to put the Baby-Friendly Hospital Initiative into effect. If
a state did want to include language regarding this, they should contact
those sponsoring this initiative to determine what would be helpful.
Or, a state could put this language in the negative - prohibiting a
hospital from advertising itself as being Baby-Friendly unless they
obtain a certificate complying fully with the requirements. Or hospitals
could be provided with incentives to become fully Baby-Friendly. Thus,
this part of Florida's legislation is not very positive, and probably
should not be copied. Texas eliminated baby-friendly language from their
bill, and instead substituted "Mother Friendly" for employment.
Any private employer that provides breastfeeding support policies can
advertise themselves as mother friendly. Other states have considered
copying this idea, as it can encourage employers in the private sector
to look at this important health choice.
One state looked at sponsoring breastfeeding legislation that would
require schools (as well as employers) to reasonably accommodate breastfeeding
mothers. Although this legislation did not become enacted, it is an
idea that other states could follow:
"Breastfed babies are one-half as likely to become ill in the
first year of life. In addition, women under the age of 20 can reduce
their risk of breast cancer by over 50% by breastfeeding just six months.
Because of these significant health benefits, employers and schools
shall provide encouragement of breastfeeding, and shall reasonably accommodate
the breastfeeding needs of employees and students."
As the majority of cases where mothers have breastfeeding legal problems
are in the area of family law, it would be very beneficial if there
was legislation that would require courts to consider breastfeeding
in fashioning custody and parenting time decisions. If possible, courts
should try to fashion these decisions in a manner that encourages the
breastfeeding relationship, while protecting the other rights and interests
involved. Rarely if ever should a Judge have to pick breastfeeding over
a bond with the father. There are so many ways to protect and encourage
both interests! Legislation should require courts to encourage breastfeeding
in making custody and parenting time decisions. If realistic alternatives
exist, why should a young baby be separated for lengthy periods of time
when it can jeopardize the breastfeeding relationship? To give an example,
Judges may order lengthy visitations every other weekend with young
breastfed babies that will cause weaning, while the father could have
just as much time with the baby, in shorter visits, where weaning would
not be necessary. Some Courts have ordered weeks at a time in the summer
with breastfed babies as young as three months old when shorter frequent
visits are better for both the baby and the relationship the baby has
with both parents. For more information on this, see our articles "Breastfeeding
and Visitation", and "Is Breastfeeding Really a Visitation
Issue". Legislation could either be as simple as stating "Breastfeeding
is an important and basic act of nurture that must be encouraged in
the interest of maternal and child health, and family values",
which could then apply to the family law cases, or more specific by
stating "In fashioning parenting time in family law cases, courts
must consider and encourage the breastfeeding relationship".
Breastfeeding mothers can have a very difficult situation if called
for jury duty. If the mother cannot breastfeed her baby regularly, her
breasts may become engorged, which could result in embarrassing stains
on her shirt if her milk begins to leak, or worse, the mother could
end of with a breast infection with fever and chills, resulting in bed
rest and medication. If the baby is old enough, the mother may be able
to pump her breasts. However, this would involve giving the mother adequate
time to pump at regular intervals, a private place to do this, a place
to clean and store the breastfeeding equipment, and a place to store
her milk. What an ordeal! No wonder that two states have enacted legislation
exempting breastfeeding mothers from jury duty. Iowa amended its jury
duty statute in 1994 to exclude mothers of breastfed children who are
responsible for the daily care of the child and not regularly employed
outside the home. Idaho exempted mothers who are breastfeeding their
children from jury duty in 1995. However, what about the parent who
is not breastfeeding, but is at home with their child? Many bottle fed
children are not accustomed to separations from their primary caretaker.
An at home mom who is not breastfeeding may be very distressed if called
for jury duty. The baby may not be able to handle the separation from
the mother, or the mother may not have adequate child care available.
Florida's exemption of all parents at home with a child under the age
of six protects all parents, and is a preferred approach.
POINTERS
ON HOW TO ASSIST A STATE IN ENACTING BREASTFEEDING LEGISLATION
Contact a local legislator, and find out if they might be interested
in sponsoring a breastfeeding bill. Give the legislator information
on other bills, and ideas for bills. Refer the legislator to others
that can give more information. Help to get information out to the community
about the bill. Encourage positive, informative letters to legislators,
rather than angry, upset letters. Nurse-ins, demonstrations, or other
activities that might appear fanatical hinder rather than help with
this. However, rallies where reputable speakers and breastfeeding information
is distributed can help to educate everyone about the importance of
breastfeeding.
There is much we can do to help change the way society views breastfeeding.
A sweet smile to a mother we observe breastfeeding can give her the
message that we think it is wonderful that she has made this healthy
choice for her baby. Getting accurate information regarding the importance
of breastfeeding, and information on the current recommendations can
help educate society that this is a health choice and not just a lifestyle
choice. Promoting legislation can be a very effective way to get the
message across to the public that breastfeeding must be encouraged,
and to help change the way we view breastfeeding.
Elizabeth N. Baldwin was an attorney and family mediator
in private practice with her husband, Kenneth A. Friedman, in Miami,
Florida. She died in March 2003 after an extended illness. Her family
law practice primarily focused on protecting young, securely attached
and breastfed babies in divorce cases. Elizabeth was also a La Leche
League Leader, and a member of LLLI's Professional Advisory Board, Legal
Advisory Council. She published numerous articles on breastfeeding and
the law, and often spoke at conferences. She assisted hundreds of parents
involved in breastfeeding legal cases, and provided information and
help to parents, attorneys and other professionals dealing with these
issues.
Copyright 1999, all rights reserved. This article may be copied for
personal use but may not be reproduced or sold for profit without permission.
Page last edited Thu Oct 15 19:44:50 UTC 2009.
