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Handling Legal Calls

by Elizabeth N. Baldwin, JD
from LEAVEN, Vol. 30 No. 6, November-December 1994, pp. 85-7

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.

Generally, legal calls fall into one of these categories:

  • Breastfeeding in public--a mother is told that she cannot breastfeed in some public location.
  • Employment--mother wants to pump her milk or breastfeed her baby on her breaks and the employer is unsupportive or prohibits it.
  • Family law--divorce and paternity actions where the father seeks overnight, weekend or longer visits with a breastfeeding child, or seeks custody.

Recent legislation can help in all of these types of cases.

Most legal calls involve two elements: the importance of breastfeeding and the balancing of various competing interests while protecting the breastfeeding relationship. When the importance of breastfeeding is the issue, legislation enacted in the United States during the past two years offers tremendous help to Leaders whether the issue arises in a state with this legislation or not. See "Breastfeeding Legislation in the United States," NEW BEGINNINGS Nov/Dec 1994 for more information about these laws. [Web editor's note: see also A Current Summary of Breastfeeding Legislation in the U.S. for current information.]

Breastfeeding Is Not a Lifestyle Choice

All current breastfeeding legislation has one thing in common: it emphasizes the fact that breastfeeding is an important health choice for mother and baby and that breastfeeding must be encouraged. For instance, new laws in the US states of Florida and New York recite some of the health benefits to mother and baby, the recommendations of the US Surgeon General, and the sad fact that far too few mothers are choosing to breastfeed or to continue breastfeeding. Although most of the legislation deals with a mother's right to breastfeed in public, the legislation was not enacted because it is illegal to breastfeed in public anywhere. The laws were enacted in the hope that if one more stumbling block is removed from a mother's decision to breastfeed or continue breastfeeding that it will help increase the incidence and duration of breastfeeding.

Thus, the best way Leaders can help is to educate mothers about the new laws and to stress why the laws were enacted. For example, a Leader could educate someone on this issue with the following information:

"Breastfeeding is not a lifestyle choice, but an important health choice for mother and baby. For instance, breastfeeding reduces the mother's risk of premenopausal breast cancer (McTiernan, 1986), ovarian cancer (Gwinn, 1990) and cervical cancer (Brock, 1989). As a matter of fact, a recent study indicates that if all mothers breastfed their children until two years of age, breast cancer could decline in the US by 25% (Newcomb, 1994). Not only that, breastfed children have less risk of developing breast cancer (Freudenheim, 1994). Breastfeeding reduces the child's risk of meningitis (Kassim, 1989), juvenile diabetes (Karjalainen, 1992), childhood cancers (Schwartzbaum, 1991), SIDS (Mitchell, 1991), Crohn's disease (Bergstrand, 1983) celiac disease (Auricchio, 1983), chronic liver disorders (Udall, 1985), and many less serious illnesses (Cunningham, 1991). The health benefits continue not only through the entire breastfeeding relationship, but the risk of some illnesses may be further reduced the longer a mother breastfeeds (Chilvers, 1993; Wolff, 1993; Owen, 1993). These significant health benefits have been recognized by the Executive Director of UNICEF in his letter to all physicians dated June 29, 1994, in which he urges the medical profession to actively encourage breastfeeding. The American Academy of Pediatrics states that all babies should be breastfed for one year unless medically contraindicated (AAP, 1989) and the World Health Organization, UNICEF, and World Alliance for Breastfeeding Action are encouraging breastfeeding until age two or beyond (Innocenti Declaration, 1990). This is the reason why several US states (including Florida, New York, North Carolina Virginia and Michigan) have enacted legislation to protect a mother's right to breastfeed in public, and why Florida enacted a new law stating that breastfeeding must be encouraged in the interest of maternal and child health."

Leaders can give mothers "Breastfeeding Does Make a Difference" (No. 64), "Facts About Breastfeeding" (No. 545g), a copy of the letter by the Executive Director of UNICEF, and information on the Innocenti Declaration (included in the World Alliance For Breastfeeding Action [WABA] folder "Women, Work and Breastfeeding: Everybody Benefits!" No. 432b). These materials can help the mother educate her lawyer and anyone else who needs breastfeeding information.

However, not all legal calls are resolved by education about the importance of breastfeeding. There are often many other issues that must be dealt with or competing interests that must be protected.

Nursing in Public

Most of the new legislation is designed to protect a mother's right to breastfeed in public. This legislation is being enacted not because it is illegal to breastfeed anywhere, but because the public perception is that breastfeeding is, or may be, indecent exposure. It is the hope of the legislatures that if it is clarified that breastfeeding is something to be encouraged, more women will feel free to nurse in public, thus increasing the incidence and duration of breastfeeding.

Although several states have enacted legislation protecting the right to nurse in public, only New York has provided a remedy for violation of this right. Prohibiting a mother from breastfeeding in New York is a violation of her civil rights! There are really no competing interests involved other than another's right not to have to see a mother breastfeed. If some one is uncomfortable seeing a mother breastfeed, that person can look the other way. We know that breastfeeding reduces the risk of many serious illnesses. We also know that if mothers give bottles in the early weeks and do not nurse on demand, there is an increased chance that breastfeeding will fail. Would we want even one mother or one baby to have an increased risk of illness just because someone doesn't want to see breastfeeding?

Employment Cases

More and more calls are coming in from mothers having difficulty breastfeeding in the workplace. As more mothers realize that they can continue to breastfeed when they return to work, the issue arises more frequently. The new legislation is very helpful.

Not only can a Leader give mothers information on the importance of breastfeeding, there are additional materials that deserve mention in this area. "Women Work and Breastfeeding: Everyone Benefits!" (WABA Action Folder, 1993, No. 432b) helps educate employers as to what is desired globally. It also tells an employer how supporting breastfeeding can be good for business. Another is Florida's 1994 law setting up a project to determine the feasibility of turning the whole state into a baby-friendly workplace. Florida's new law, entitled "Access to Breastfeeding for Public Sector Employees Demonstration Project" (Fla.Stat. 383.018(6)), calls for the drafting of written policies supporting breastfeeding practices for the workplace. It addresses issues including work schedule flexibility; access to clean, comfortable places to pump or nurse; adequate break time; and access to a place to clean breast pump equipment and store breast milk. The written policies will be implemented in Miami, Florida, beginning November 1994, with a full report given to the legislature by December 1995 including evaluations and recommendations to implement the project statewide.

This legislation is the first of its kind and will set the scene for how breastfeeding issues are handled in the work place. What employer would discourage breastfeeding knowing that it is so important that legislation is being enacted to protect it? Wouldn't an employer want to lead the way by voluntarily encouraging breastfeeding?

Other sources of information are local task forces or state Healthy Mother Healthy Baby programs, where mothers may be able to get information on programs or projects that are targeting employers. Mothers also may want to contact Medela or Ameda/Egnell about their corporate lactation programs and find out if employers in their state are participating.

The best way to help a mother in such cases is to educate employers about the importance of breastfeeding, show how it benefits employer as well as employee, and explain what is being done to promote breastfeeding in the workplace globally and nationally. However, keep in mind that if a mother thinks that she has been discriminated against or that she may need to take legal action, she should get good legal advice immediately because there are strict time limits on filing discrimination actions and labor law cases. If the mother misses the deadline, her case may be barred.

Family Law Cases

Family law cases are more difficult because the competing interests in these cases are very compelling. Educating the parties involved about the importance of breastfeeding will only partially help a mother. The reason for this is that the courts will not pick breastfeeding over a bond with the father, even though they may recognize that breastfeeding is important and best for the child. Even if the mother does prove how important breastfeeding is, if she does not also deal with the related issues of separation and attachment, she may be told to just pump her breasts so the father can have overnight or weekend visitation.

Whether in a divorce or paternity action, the primary concern of the court is to protect the child's relationship with both parents after they separate. If one parent is asking for restricted or shorter visitation, the court carefully scrutinizes the situation. Since many courts look at which parent will provide better access to the other parent and which parent will help foster a close relationship between the other parent and the child, mothers need to use caution if they are asking for visitation that is not considered standard in the mother's area.

In looking at the competing interests here (namely, the father's bond), it seems obvious that the best way to protect the breastfeeding relationship is to show the court not just why breastfeeding is important, but how the breastfeeding relationship can be protected while the father's bond is encouraged. The mother needs to reassure the court that she wants the father involved in the child's life, that she wants him to have a bond, and that she also values a bond between father and child. Mothers who do not want the father to be in the child's life have a difficult road ahead of them and often are more at risk of losing custody than any other group of mothers.

In order to protect the breastfeeding relationship, mothers need to understand that a child's best interests require balancing the competing interests of breastfeeding and a bond with the father. Most mothers have trouble balancing these interests objectively because of their anger. Counseling is an excellent resource for mothers. It will give them a safe outlet for letting out their anger and developing communication skills so that they can work with the baby's father.

Although education on the superiority of human milk is important in these cases, it is more important that the mother address the psychological issues involved. These should be proven legally by a psychiatrist, psychologist or other mental health professional. If the focus is on how beneficial breastfeeding is without dealing with the separation issues, there is a much greater chance that the court could decide that delivery of the mother's milk, by any means, will protect the breastfeeding relationship.

It is generally not wise to raise breastfeeding as an issue past age one and certainly not past age two. Unfortunately, many experts may be uneducated and unsupportive of breastfeeding, especially when it comes to nursing past infancy. Also, most toddlers can be separated from their mothers for quite a long time and still return to breastfeeding. It is not the breastfeeding relationship that is at risk, but rather the separation issue. Securely attached children who are not accustomed to separations, breastfed or not, would be equally distressed by long separations. Not only that, if the mother leads the court to believe that overnight visits are impossible because of breastfeeding, she risks being told to wean. The courts will not give preference to breastfeeding if it seems to interfere with a bond with the father.

Whether or not the mother's case is going to court, it helps to have reasonable and sensible visitation plans. Visitation that is best for the child begins with what the child is already accustomed to, gradually increasing in time every few months until the visits have worked up to overnight, weekends and summer visitation. Visitation plans should give the most visitation the child can handle, not the least. The best way to convince a judge to put off lengthy visitations with the father is to show the court how the father can have short, frequent visits.

Any legal call where the mother is alleging that the father is abusive is a red flag case. These cases can be problematic. If the mother is unable to legally prove the abuse through admissable evidence, the court may conclude that the mother will deny the father access, or that she will poison the child's mind against the father. This can be enough to convince a court that the father will be the better parent in that it may appear he would encourage the other parent's bond better than the mother would.

Other Legal Cases

In other types of legal cases, educating the parties involved about the importance of breastfeeding is probably the best course of action. Providing information on new laws that have been passed is one easy way to do this. See LEAVEN Sept/Oct 1994 for information on jury duty cases. Criminal cases, where a breastfeeding mother is sentenced to jail for charges unrelated to breastfeeding or a pregnant mother gives birth in jail and wants to breastfeed, can be very upsetting to handle. The right to rear our children is inconsistent with incarceration. However, there are some places that allow the mother to keep the baby with her during the first year of life. In most cases the best that can be accomplished is educating the attorney on the importance of breastfeeding in the hope that it may help the mother's lawyer work out an arrangement for her to continue breastfeeding.

Careful handling is required in cases where the mother is charged with a crime related to breastfeeding (such as using drugs that harm the baby), or social service agency cases, where a mother is reported for abuse/neglect and the issue of extended breastfeeding or low weight gain is raised. These cases can have serious implications for other breastfeeding mothers by setting bad precedents.

With personal injury cases, where a mother is unable to breastfeed because of injury due to an accident or injury to her breast, education about breastfeeding is what is needed to help her prove that she has lost something valuable.

Leaders should contact their Area Professional Liaison (APL) when they receive a legal call. It is important to get help with legal calls as it may be difficult to determine what the real issues are, what help is really needed, and how to avoid saying things that might be misused later on. The APL can confer with me or may refer a Leader or mother directly to me in urgent cases. As we all learn more about legal situations we'll be better able to help the next mother with a legal problem.

REFERENCES

Auricchio, S. et al. Does breastfeeding protect against celiac disease in children? J Pediatr Gastro & Nutr 1983; 2: 428-33.

Bergstrand, O. and Hellers, G. Breastfeeding in infancy in patients who later developed Crohn's disease. Scand J Gastroentero 1983; 18: 903-06.

Brook, K.E. et al. Sexual reproductive and contraceptive risk factors for carcinoma-in-situ of the uterine cervix in Sidney. Med J Aust 1989; 150: 125-30.

Cunningham, A.S. et al. Breastfeeding and health in the 1980s: a global epidemiologic review. J Pediatr May 1991; 118: 659-66.

Freudenheim, J.L. et al. Exposure to breast milk in infancy and the risk of breast cancer. Epidemiology 1994; 5(3): 324-31.

Gwinn, M.L. et al. Pregnancy, breastfeeding and oral contraceptives and the risk of epithelial ovarian cancer. J Olin Epidemiol 1990; 43(6): 559-68.

Karjalainen, J. et al. A bovine albumin peptide as a possible trigger of insulin-dependent diabetes mellitus. N Engl J Med1992; 327(5): 302-07.

Kassim, O.O. et al. Class-specific antibodies to bordetella pertussis, haemophilus influenzas type b, streptococcus pneumonias and neisseria meningitis in human breast milk and maternal-infant sera. Ann Trop Paediatr 1989; 9:226-32.

McTiernan, A. and Thomas, D.B. Evidence for a protective effect of lactation on risk of breast cancer in young women. Am J Epidemiol 1986; 124(3): 353-58.

Mitchell, A. et al. Cot death supplement: results from the first year of the New Zealand cot death study. N Z Med J 1991; 104:71-76.

Newcomb, P.A. et al. Lactation and a reduced risk of premenopausal breast cancer. N Engl J Med 1994; 330(2): 81-87.

Schwartzbaum, J. et al. An exploratory study of environmental and medical factors potentially related to childhood cancer. Med & Pediat Oncology 1991; 19(2): 115-21.

Udall, Jr., J.N. et al. Liver disease in al-antitrypsin deficiency: a retrospective analysis of the influence of early breast-vs-bottle-feeding. JAMA 1985; 18: Z679 82

OTHER HELPFUL REFERENCES

Florida Statutes, section 383.015 (1993); Florida Statutes, section 383.018(6) (1994).

New York Senate Bill No. 3999-A, 1994 Regular Session, Chapter 98, New York Advance Legislative Service.

Baldwin, E. and Friedman, K. Is Breastfeeding Really a Visitation Issue? Mothering Fall 1993; 68.

Baldwin, E. Extended Breastfeeding and the law. Mothering Spring 1993; 66.

Grant, JP. Executive Director of UNICEF. Call to physicians for support. Baby-Friendly Hospital Initiative Newsletter Jul/Aug 1994 (available from LLLI).

Kneidel, S. Nursing beyond one year. NEW BEGINNINGS, Jul/Aug 1990.

La Leche League International. Breastfeeding Rights Packet (No. 78), Custody/Visitation Arrangements for the Breastfeeding Child (No. 78c), Breastfeeding Does Make a Difference (No. 64), Facts about Breastfeeding (No.545g).

Suhler, A, Bornmann, PG, and Scott, JW. The lactation consultant as expert witness. J Human Lact September l991; 7(3): 129-40.

Wilson-Clay, B. Extended Breastfeeding as a legal issue: an annotated bibliography. J Human Lact June 1990; 6(2): 68-71.

Editor's Note: While this article pertains to legislation in the USA, we welcome input from Leaders in other countries about legal situations that affect breastfeeding.

[Web Editor's note: several other articles by Elizabeth Baldwin can be found on the LLLI Web Site at Breastfeeding and the Law.]

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