This post is a part of our Bioethics in the News series. For more information, click here.

By Deborah Fisch, JD

Public fascination with the female [1] breast is nothing new, from Janet Jackson’s famous “wardrobe malfunction” to Angelina Jolie’s much-discussed preventive mastectomy. When, in addition, the breast is used in its reproductive capacity to nourish children, law especially sits up and takes notice. In 2014 the lactating breast was at the center of a number of issues, with implications not only for legal rights, but also medical practice, public health, and Reproductive Justice. The breast, so active last year, was propelled by interesting messages, ultimately arriving at unexpected places.

[1] The author recognizes that some people who breastfeed do not identify as women; in the absence of generally accepted non-specific language, this article will alternate the use of gender-specific and gender-neutral terms.

1. The Public Breast: Yes, You Can!

Passage of Michigan’s Breastfeeding Antidiscrimination Act represents an improvement on previous legal protections limited to the breastfeeding’s exclusion from municipal public indecency laws. The new Act broadly forbids the denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service to a woman because she is breastfeeding a child.” It also provides civil remedies in case of violation; in offering recovery of litigation costs, the law makes it possible for a greater number of injured parties to pursue legal redress.

The Act does not include the addition of breastfeeding as a fundamental right, a provision that might have shaped employment sex discrimination cases. Of more pressing concern is that although since 2012 breastfeeding mothers may be exempted from jury duty, no caregiver exemption exists. To suddenly locate full-time childcare for an indeterminate period of time may be even more challenging than coping with the interruption of breastfeeding. In other words, while breastfeeding is a biological act, it is its social context that can often determine its success or failure.

2. The Working Breast: We Think You Can!

Nowhere is breastfeeding’s social context more central than in the workplace. The absence of a national parental leave policy presents an immediate barrier to continued breastfeeding, as does the lack of workplace-centered childcare.

The Affordable Care Act addressed this obstacle by requiring employers to provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth.” However, legal experts are skeptical of the provision’s effectiveness. Philadelphia attorney Jake Marcus has long pointed out the law’s lack of a clear enforcement provision and what that means. She also questions the extent of the law’s coverage, an issue addressed by Nancy Ehrenreich in a forthcoming article. While the law on its face covers hourly workers and excludes salaried workers, Ehrenreich believes that in practice, salaried workers are more likely to reap its benefits because of factors related to logistics, culture, and power dynamics. She argues that the (unpaid) “Break Time” provision may actually exacerbate systemic inequalities based on race and class: mothers abandonment of breastfeeding will be regarded as “evidence of ignorance and poor parenting – and therefore as deserving of disciplinary surveillance and regulation.”

Even were the provision a panacea, pumping milk is not identical to breastfeeding. Benefits and risks have yet to be clearly assessed for replacing feeding at the breast with from pumped milk. The degree of contamination and deterioration of the milk during pumping and storage are unknown, as are the consequences of imposing a pump between the physiological supply and demand relationship a mother and baby share. What is clear is that any convenience afforded by breastfeeding is eliminated when pumping is substituted for direct feeding, thus burdening mothers far beyond the considerable labor already required.

3. The Criminal Breast: Don’t–Or Else.

Lynne Paltrow and Jeanne Flavin write of the criminalization of pregnancy, the loss of civil or human rights when pregnant. Behavior that is permitted in non-pregnant people is forbidden when carried out by pregnant ones, with uneven enforcement based on socioeconomic status and race. Similarly, the disapprobation many Americans feel at the idea of public breastfeeding – thus the need for protective laws – often translates into moral policing and criminalization of breastfeeding women’s behavior.

The flip side of a cultural belief that the public breast is meant only for sexual consumption is the moral imperative that breastfeeding women be purer than pure. An Arkansas woman was arrested when a waiter phoned the police, complaining that she was drinking beer while breastfeeding, even though claims of harm to infants by breastfeeding mothers’ moderate drinking remain unsubstantiated.

At the same time, no amount of moral purity protects breastfeeding parents from the charge of harming their children – through breastfeeding! Anthropologist Katherine A. Dettwyler notes that “ … women have been accused of sexual abuse of their children simply for breastfeeding them for various lengths of time deemed inappropriate by others, including mothers of children as young as 2 months of age.”

When breastfeeding parents are found to have used drugs, including at times prescribed medications, they are held responsible for any harm to their infants, even without legal culpability – or indeed, a causal link between behavior and harm. This pattern is mirrored in the removal of children for alleged abuse and neglect based on the presence of marijuana in a household.

The possibility of transmission through breast milk of a miniscule amount of a substance is often erroneously equated with a greater amount through placental transmission or direct ingestion by the newborn.  So a hospital might forbid breastfeeding by new mothers who have tested positive for marijuana, a specter that raises these questions: Which pregnant patients are most likely to be tested? Which babies are more likely to suffer the adverse affects of poverty, often mistaken in research for after-effects of maternal drug use? What impact will such testing and prohibitions have on mothers’ likelihood of seeking medical care for their children or themselves? Will these measures ultimately improve the health of infants?

4. The Profitable Breast: We Value You!

Journalist Kimberly Seals Allers, a consultant to the Detroit Black Mothers’ Breastfeeding Association, describes reservations expressed by BMBA and other advocacy organizations at the plans of Medolac, an Oregon company, to solicit donations of breast milk at $1/ounce from lactating women in Detroit. Medolac hopes to re-sell milk to hospitals for use by preterm infants.

The commodification of body parts and fluids is a topic long disputed by advocates, ethicists, and scholars. Whether payment should be offered for breast milk is a question beyond the scope of this piece. Nevertheless, one wonders how Medolac could be so remarkably insensitive to the context and conditions of this particular business venture.

Residents of Detroit have endured shortages of the most basic necessities. The area suffers from an infant mortality rate over twice the national average. Pre-term births rose sharply in Detroit starting in 2008, at a time when the national rate was falling. African-Americans, who account for 82% of Detroit’s population, are three times more likely than their white counterparts to die of childbirth, and their children are twice as likely to die in the first year of life. Furthermore, women of color carry memories of the historical appropriation of their reproductive bodies, whether as coerced sexual partners, forced breeders of slave labor, or unpaid caregivers – including as wet nurses – to white women’s children to the detriment of their own.

It is hardly surprising that the women of Detroit, as represented by ‪Breastfeeding Mothers Unite, vociferously object to the commodification of their breast milk, when their own infants’ health so urgently requires that milk. Any benevolence Medolac originally intended notwithstanding, its campaign was tone deaf in the extreme.

As this article was going to press, Medolac announced the retirement of its campaign in Detroit.

Conclusion

A common theme is not so much national or state law as a combination of the Law of Unintended Consequences and Murphy’s Law. Various entities with good intentions have nevertheless not gone far enough, gone too far, or caused outcomes the reverse of their design. Part of the blame results from reliance on inadequate, incorrect, or changing evidence – but what is to be done? The responsibility of the legislature is to safeguard the public’s health. Medical providers are ethically bound to respect patient autonomy and do no harm. The ultimate legal rights inquiry is who decides, while Reproductive Justice demands that governments affirmatively assist people in accessing their rights. Consider also that no one is more concerned about the welfare of a child than its mother; no one holds the child’s interest closer to their heart.

These facts taken together suggest that consulting and following the wishes of breastfeeding parents will yield the best chance of identifying problems and arriving at solutions. Detroit mothers would eagerly have given input on the prospect of selling their breast milk, had they been asked. Parents who use substances can explain what policies would best support them in taking care of their children. The initiatives required to permit parents in the workplace to continue to breastfeed are to be most easily discovered by asking a variety of parents in the workplace. Whether a law protecting breastfeeding in stores and restaurants goes far enough is, again, best evaluated by people who struggle with integrating breastfeeding into their private and public lives.

When in doubt, trust and support breastfeeding parents. The breast that feeds the child is (usually) attached to the parent, after all. As much as we might wish to endow the breast with a separate identity and cause it to function – or malfunction, in Ms. Jackson’s case – at the behest of medicine, public health, or the law, it is the person behind the breast who can say what is needed, and tell us how to get there.

Deborah Fisch, JD, is Senior Researcher at the Sexual Rights and Reproductive Justice Program at the University of Michigan. She is a founding member of the Birth Rights Bar Association and actively advocates for licensure of Certified Professional Midwives in Michigan. Her professional interests include the role of malpractice liability in determination of standard of care; the legal maternal-fetal relationship in pregnancy, labor, childbirth, and postpartum; regulation of out-of-hospital birth attendants and protocols for their interaction with in-hospital providers; and evolving access to maternity care under the Affordable Care Act. She writes on these subjects and many others at Mama’s Got a Plan and the associated Facebook page. She earned her AB in Linguistics from the University of Michigan and her JD from Wayne State University Law School. All opinions expressed in this article are her own.

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