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Extended Breastfeeding and the Law

By Elizabeth N. Baldwin, Esq.

There is no evidence that breastfeeding a child beyond infancy is harmful. Quite the opposite is true: breastfeeding benefits toddlers and young children, both nutritionally and psychologically.

Over the past year, mothers have expressed growing concerns about the legality of extended breastfeeding. And with little wonder. The media has been giving more and more publicity to the subject, and social service agencies throughout the United States have been addressing these issues in their cases. Rest assured, however, breastfeeding is not child abuse or neglect, and no reported decisions to date claim that it is.

To the contrary, upon learning of the normalcy and frequency of extended nursing in this country, several social service agencies have closed out cases involving breastfeeding. A Minnesota mother was accused of abuse for nursing a six year old in public. In reality, she was nursing a three year old; and as soon as the child's age was established, the case was closed. In Tennessee, accusations against a mother nursing a four and a half year old were dropped. In Florida, a mother was cleared of abuse for nursing a six year old!

Although our society as a whole may not be knowledgeable about or supportive of extended breastfeeding, nursing mothers need not conclude they are at increased risk of encountering problems with social service agencies. In only a handful of cases has breastfeeding been involved, and most of these were resolved easily and favorably.

The Evidence in Favor of Breastfeeding

There is no evidence that breastfeeding a child beyond infancy is harmful. Quite the opposite is true: breastfeeding benefits toddlers and young children, both nutritionally and psychologically. Breastmilk remains a valuable source of protein, fat, calcium, and vitamins well beyond two years of age. (1) Immunities in breastmilk become more concentrated as nurslings mature; (2) at the same time, the likelihood of allergies decreases. (3) Mothers who nurse past infancy derive benefits as well, including a decreased risk of breast and ovarian cancer the longer she continues nursing. (4)

Breastfeeding is a warm and loving way to meet the needs of toddlers and young children. It not only perks them up and energizes them; it also soothes the frustrations, bumps and bruises, and daily stresses of early childhood. In addition, nursing past infancy helps little ones make a gradual transition to childhood. In fact, prolonged nursing is associated with better social adjustment. (5)

Breastfeeding past infancy is as old as humanity. Still common in Western cultures as recently as a hundred years ago, the practice then underwent a sharp decline. Now, extended breastfeeding is becoming more popular, and medical professionals are beginning to recognize how valuable it is. While the American Academy of Pediatrics acknowledges the value of breastfeeding for the entire first year of life, (6) the US Surgeon General has stated that it is a lucky baby who continues to nurse until age two. (7) The World Health Organization emphasizes the importance of nursing up to two years of age or beyond. (8) What's more, the number of mothers currently nursing past infancy has created a nationwide market for a book on the subject, which includes an entire chapter on nursing past age four. (9)

Some people are upset, if not shocked, to learn that children can nurse for so long. Curiously, these same people are hardly surprised to see kindergartners sucking their thumbs or fingers. The truth is that the need to suck, like many other dependency needs, does not disappear overnight, and often lasts longer than we as a society are willing to accept. Indeed, the average age of weaning around the world is 4.2 years. (10)

Meeting a child's dependency needs is the key to helping that child achieve independence. And children outgrow these needs according to their own unique timetable. Some youngsters who continue to nurse well into childhood are for many years nearly weaned. Actual weaning, says La Leche League, is a personal decision to be made by each mother, based on her particular family situation and individual circumstances. (11) Mothers instinctively know when the time is right.

What Makes a Case?

Many mothers who nurse past infancy wonder if they are likely to be reported for abuse. To be frank, any parenting practice that is unfamiliar or unacceptable to a caseworker may be viewed unfavorably, adding fuel to an already growing fire. Factors that most often complicate abuse cases pertaining to breastfeeding include the age of the child, low weight gains, and low rankings on the growth chart (generally below the 5th percentile). Parenting practices that could influence the attitude of caseworkers include not only prolonged nursing, but also the family bed, nudity, non-vaccination, alternative healthcare treatment, and even homeschooling. Sexual issues can definitely complicate a situation and send off alarms in a caseworker's mind.

When a mother is reported for abuse, her life is placed under a microscope. Why such scrutiny? Because that is the caseworker's job. While anyone can be reported for abuse, the report must be investigated before the accused can be found guilty of abuse. And the difficult task of investigating whether or not a child is being abused falls to the caseworker.

Many abusers try to cover up their actions; other parties are falsely accused to begin with. The only way to determine the underlying reality of each situation is to talk to the accused, examine the victim, and look at the surrounding circumstances. What a responsibility this is! And to top it off, caseworkers are often overwhelmed with reports, underpaid, and under extreme pressure. Any mistake they make, any evidence they overlook, could be deadly to a child. Some caseworkers in Florida, for example, were criminally prosecuted for failing to take action on a case in which the father eventually killed his toddler.

Naturally, a caseworker cannot be "on mom's side," or even walk into a situation with objectivity. Instead, the caseworker must wear a hat and follow a mission: to discover whether or not the woman is lying. Everything about the accused, including what she says and does, becomes indirect evidence of her truthfulness or dishonesty. The caseworker's observations are often based on perception, and are therefore subjective (what appears) rather than objective (what occurred), leaving room for misinterpretation and poor judgment.

Prospects being what they are, what should breastfeeding mothers do? Should we hide our parenting practices? Lie to doctors, friends, and relatives? No! This course of action can only enhance any appearance of guilt and will in no way reduce the likelihood of problems. The best approach is to acknowledge the sad fact that social service agencies are in a state of crisis, and to realize that we as citizens have basic rights and protections built into the law.

Coping with Reports of Abuse or Neglect

If you are charged with abuse or neglect, do not panic. Instead, exercise your basic rights, get legal advice immediately, and use discretion--all the while, taking pride in your parenting practices.

Here are some pointers:

  • Never open yourself up voluntarily to investigations. Most of the cases with dire consequences involve mothers who either agreed to caseworker supervision, said things that were later misinterpreted, or confessed to the charges, operating on the belief that if they simply told the caseworker what happened, the charges would be dropped. A far more expedient approach is to cooperate with the authorities without admitting to any facts or agreeing to anything. One mother who was accused of abuse by telephone repeated the accusations to make sure she understood them correctly, said she would call back right away, then retained a lawyer. The case was closed for lack of evidence.
  • If the report has been filed with the police, or if you are asked to go to the police station, assume that you are a suspect in a crime, and act accordingly. Remember, constitutional rights--such as the right to remain silent or to have an attorney present during questioning--were designed to protect innocent people. You will not appear guilty for exercising these rights.
  • Obtain good legal advice as early as possible. Hire a lawyer experienced in social service agency cases, or at least a criminal lawyer, rather than a specialist in family or real estate law who may not have the background required to advise you properly. Once you have an attorney, attempt to substitute the usual caseworker home visit with a meeting in the social service agency office, with your attorney present. Let the lawyer be your advocate!
  • Avoid creating issues that do not already exist. The social service agency is not a forum for validating your style of parenting. If an additional concern should arise, address it; otherwise, do not feel compelled to speak of your shortcomings or distinctive childrearing practices.
  • Help your lawyer clear all breastfeeding accusations. Start by educating your lawyer, so that he or she can in turn educate the caseworker. For information and resources, contact your local La Leche League Leader. La Leche League International, acutely aware of the legal problems faced by breastfeeding mothers, offers supportive material and is at work on a program that will soon assist mothers in a more formal manner. (See For More Information.)
  • In final analysis, yes, there is a very small risk that extended breastfeeding can result in or complicate a false report of abuse or neglect. By understanding the logic behind the legal process and by handling the report efficiently, you can emerge not only falsely accused, but also empowered and worldly wise. Help the system work for you, not against you.

    Notes

    1. Sally Kneidel, "Nursing beyond One Year," New Beginnings 6, no. 4 (July-Aug 1990): 100.

    2. See Note 1.

    3. See Note 1.

    4. Center for Breastfeeding Information, "Breastfeeding Fact Sheet--1991," (Franklin Park, IL: La Leche League International, 1991).

    5. See Note 1, p. 101.

    6. Committee on Nutrition, American Academy of Pediatrics, "Follow-up on Weaning Formulas," Pediatrics 83 (1989): 1067.

    7. Antonio Novello, MD, US Surgeon General, "You Can Eat Healthy," Parade Magazine (11 Nov 1990): 5.

    8. "Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding" (1 Aug 1990), adopted by 32 governments and 10 UN and other agencies at a WHO/UNICEF meeting cosponsored by USAID and SIDA.

    9. Norma Jane Bumgarner, Mothering Your Nursing Toddler (Franklin Park, IL: La Leche League International, 1990).

    10. Ester Davidowitz, "The Breastfeeding Taboo," Redbook (July 1992): 114.

    11. La Leche League International, The Womanly Art of Breastfeeding, rev. ed. (Franklin Park, IL: La Leche League International, 1991), p. 254.

    [This article originally appeared in Mothering magazine, spring 1993 issue.]


    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 1993, all rights reserved. This article may be printed out for personal use but may not be reproduced in any other manner nor for any other purpose without permission.

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