Breastfeeding Policies and Practices in an International Human Rights Context
Karen M. Kedrowski
Department of Political Science
Rock Hill, South Carolina, USA
Prepared for Presentation at the Oxford Roundtable
"Women in the Modern World: The Struggle for Equality"
Breastfeeding Policies and Practices in an International Human Rights Context
Human beings are mammals, and as mammals, they are designed to feed infants with uniquely designed milk. Lactation is a biological function. Women’s bodies prepare to feed their infants during pregnancy and human breast milk is uniquely designed to be the optimal food for human babies. At the same time, human beings are more than biological mammals. Humans are also products of the cultures in which they grow up and currently live. Infant feeding decisions are placed in a cultural context. As a result infant feeding practices vary world wide. Women may exclusively breastfeed, never breastfeed, or supplement breastfeeding with a wide variety of foods and drinks.
The context in which women make infant feeding decisions is influenced by a variety of factors. Any of these factors may encourage breastfeeding, or discourage breastfeeding. Such factors include cultural traditions, religious beliefs, whether the mother works outside the home, attitudes held by other family members and the mother’s level of education. Moreover, while nursing may be instinctive to some mammals, it is not instinctive to humans. Breastfeeding is a learned behavior, and women may give up breastfeeding out of frustration and lack of support, especially if other women in her family did not breastfeed.
Breastfeeding advocates have argued that women have a right to breastfeed; some argue further that children have a right to be breastfed. They have justified this claim by using a variety of national and subnational laws, and by arguing for the applicability of general sex discrimination prohibitions to breastfeeding in particular. However, this right is often contested, and women face a variety of legal and cultural barriers to exercising this right. While breastfeeding has been ensconced as a legal right in various countries and in international law, women face difficulties exercising their legal rights to breastfeed their infants. This paper will analyze the question of breastfeeding from the perspective of various international human rights policy statements to determine whether they provide a basis to claim a universal right to breastfeed and/or to be breastfed. It will also discuss the application of breastfeeding rights to some difficult cases, including children with disabilities or refugee status, incarcerated mothers and employed mothers.
Breast Milk: The Optimal Infant Food. Breastfeeding is important. Breast milk is infants’ perfect food. Not only is it perfectly nutritionally balanced for human babies, but a mother’s breast milk changes as the child ages and its nutritional needs change. Moreover, breast milk contains antibodies to every disease that the mother has ever contracted, immunized against, or to which she has been exposed. Thus infants who are fed breast milk have lower risk of developing a wide variety of ailments and infectious diseases than their counterparts who are fed commercial formula or other breast milk substitutes. Moreover, if infants fed breast milk do become ill, their illnesses may be less severe and of shorter duration that infants who are not breastfed.
Human breast milk appears to have a protective effect against a variety of respiratory and gastrointestinal illnesses, including necrotizing entercolitis, inner ear infections, respiratory syncytical virus (RSV) and other respiratory tract infections, diabetes, Crohn’s Disease, allergies, eczema, asthma, diarrhea, urinary tract infections, Celiac Disease and certain types of cancer. Breastfed infants are also less likely to die of Sudden Infant Death Syndrome, and to have higher intelligence, although the reasons for these associations are not known. Mothers who breastfeed also experience health benefits, including a more rapid return to pre-pregnancy weight, suppressed ovulation, lower risk of pre-menopausal breast cancer and ovarian cancer, and lower risk of hip fracture. In addition, many breastfeeding advocates claim that the act of breastfeeding creates a close bond between mother and infant that contributes to their psychological well-being.
In the developing world, where supplies of clean water are scarce and commercial formula is very expensive, breastfeeding is, literally, lifesaving. In many countries in the developing world, diarrhea is one of the leading causes of infant deaths. Many of these deaths are due to infants being fed formula mixed with unclean water. The United Nations Children’s Fund (UNICEF) estimates that, if all mothers exclusively breastfed their babies for the first six months, some 1.6 million infant deaths would be prevented each year world wide.
Recognizing the importance of breast milk to infant and maternal health, the American Academic of Pediatrics (AAP) recommends that infants be exclusively breastfed for the first six months of life, breastfed at least 12 months, and that breastfeeding continue as long as desired by both mother and child. The World Health Organization (WHO)’s recommendation goes even further. It recommends exclusive breastfeeding for the first six months, and continued breastfeeding through the child’s second year.
Breastfeeding Rates Worldwide. Human infants were breastfed for the vast majority of human history. However, over time the biological function of lactation and the act of suckling became entwined with cultural meanings that vary from region to region. Various cultures introduced complementary and substitute foods based upon local religious and social practices. However, breastfeeding rates have declined world wide since the early part of the twentieth century. Experts believe that several social and economic changes help account for the decline of breastfeeding. One possible explanation are hospital practices that include giving infants formula or sugar water immediately post-partum, which can interfere with the establishment of breastfeeding; the distribution of formula samples, bottles and pacifiers by hospital personnel, sometimes accompanied by literature that describes breastfeeding as difficult; and a lack of support from health care workers. Second, experts note, in some regions of the world, women associate bottle-feeding with "modern" or "scientific" parenting practices. Moreover, in developing countries, women with higher levels of education and those who live in urban areas are less likely to breastfeed than women with less education or who live in rural areas. In addition, western cultures in particular ascribe sexual connotations to the breast. Thus public exposure of the breast is considered obscene, and is discouraged by a variety of social taboos and legal prohibitions.
Consequently, breastfeeding rates vary by region. Countries in Western Europe have breastfeeding initiation rates of 70-90 percent, and between 15-30 percent of infants are exclusively breastfed at six months. Breastfeeding rates are in a similar range in Australia, New Zealand and in some areas of the United States. While breastfeeding is nearly universal immediately post-partum in other regions of the world, exclusive breastfeeding for six months is less common. For instance, about 20 percent of mothers in Western and Central Africa, and the states of the former Soviet Union were exclusively breastfeeding at six months in 2004. Rates of exclusive breastfeeding at six months were higher in the Middle East and North Africa (29%), South Asia (38%), Eastern and Southern Africa (41%) and East Asia/Pacific (43%).
Breastfeeding and Various Special Populations. This paper also explores the issue of breastfeeding rights for various special populations. Among them are children who are refugees. Human rights scholar George Kent notes that the distribution of infant formula to refugee camps often leads to the early cessation of breastfeeding. A second group are children with disabilities. Children with certain disabilities or medical conditions, including severe allergies or cleft palate, may be specifically prescribed breastfeeding by their medical doctors. In the United States at least, women have not had widespread success in arguing for extended maternity leaves to care for children with disabilities, even when medical doctors specifically prescribed breastfeeding for these children.
A third special population are mothers with HIV/AIDS and their infants. Medical evidence on the issue of HIV/AIDS transmission is very complex. HIV/AIDS may be transmitted through breast milk; however infants of mothers with HIV/AIDS who are exclusively breastfed for six months appear to have a lower risk of developing AIDS than those who are fed formula or those who are fed a combination of breast milk and substitute foods. Thus women with HIV/AIDS face a difficult choice determining whether to breastfeed and for how long to continue.
A fourth special population is that of incarcerated mothers. Some breastfeeding advocates also praise initiatives, such as the one adopted in the state of New York in the United States that allow incarcerated mothers to keep their babies with them in prison in order to breastfeed. They assert that this practice enables these mothers to bond with their infants and to develop good parenting habits; thus these mothers can better care for their children upon their release. Moreover, the infants will not suffer separation from their mothers and may enjoy the health benefits of breastfeeding.
Balancing Paid Employment and Breastfeeding. A fifth special population is employed mothers. Another explanation for the low rates of breastfeeding internationally is the entry of women into the paid workforce. Breastfeeding advocate Ted Greiner argues that breastfeeding and paid employment are not incompatible. While this statement is no doubt true, it does understate the difficulties that women face in balancing these two demanding occupations. Combining breastfeeding and paid employment outside the home is difficult, and in some cases, impossible, to reconcile. For instance, women need frequent breaks to nurse or express breast milk. However, on-site child care facilities are rare, and children are not necessarily welcome in the workplace. In fact, certain settings, such as in factories or large agricultural operations, the workplace may be dangerous for children. While Ted Greiner argued in 1990 that "[b]reastfeeding is more comparable with many types of work done by women in developing countries," this statement is probably less true today, with rapid industrialization and an increasingly global economy.
Moreover, cultural practices and patriarchal workplaces may discourage women for asking their employers to accommodate their need to express milk or nurse in the workplace. Judith Galtry argues, for instance, that in New Zealand, for instance, longer maternity leaves to accommodate breastfeeding were difficult to enact as national policy because of concerns that any deviation from the "traditional male work cycle" would be detrimental to the labor market.Similarly, several women in the United States have unsuccessfully sued under various federal and state laws to exercise their right to breastfeed at work. Some of these women were dismissed for excessive absenteeism; others faced harassment from employers and coworkers. Each case demonstrates the difficulties of balancing these two demands. In her comparison of the United States, Sweden and Ireland, Galtry concludes that increasing breastfeeding rates and lengthening the duration is depending upon both favorable public policies, just as generous paid maternity leaves, and socio-cultural support of breastfeeding. Indeed paid maternity leaves are associated with lower rates of infant and child mortality, and generally better health outcomes in OECD countries. While many factors may lead to this outcome, including lower exposure to infectious diseases by delaying enrollment in child care facilities, arguably longer breastfeeding is also a contributing factor. Recognizing these many associations, in 2003 the World Health Organization (WHO) and the United Nations Children’s Fund (UNICEF) called upon member nations to adopt and monitor maternity leave policies that would facilitate paid employment and breastfeeding.
SEARCHING FOR BREASTFEEDING RIGHTS IN INTERNATIONAL LAW
Breastfeeding advocates have turned to using the language of rights to promote breastfeeding and to support the decisions of breastfeeding mothers. This decision has some basis in national and subnational laws. For instance, nearly all the states in the United States have enacted legislation protecting mothers’ rights to breastfeed in public; some go farther to recognize mothers’ rights to breastfeed at work. In addition, the United States’ federal government has enacted limited protections of mothers’ right to breastfeed on federal property. At the same time, the Employment Appeal Tribunal in the United Kingdom stopped short of recognizing a national right to breastfeed in the workplace, and no similar law exists at the national level. Another issue that makes a rights-based analysis complex is the fact that breastfeeding involves at least two rights-bearing entities – the mother and the child – and may involve others, including fathers, the state, passersby, and even employers. The degree to which these other entities may have influence on the breastfeeding dyad will vary according to national law and cultural practices.
Thus, given its universality, the applicable laws are various international human rights laws and recommendations that have been enacted by the United Nations (UN) and, in the case of treaties, ratified by its member nations. The purpose of this paper is to examine all relevant international laws and statements to determine how they apply to the context of breastfeeding rights, and will explore the degree to which international law and policy statements are a fruitful means of examining the breastfeeding question.
There are seven international human rights documents that potentially impact breastfeeding and can help define the issues of breastfeeding rights from various perspectives. They are the:
Universal Declaration of Human Rights, enacted by the UN General Assembly in 1948;
International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly in 1966;
Convention on the Elimination of All Forms of Discrimination Against Women, adopted by the UN General Assembly in 1979;
International Code of Marketing of Breast-milk Substitutes, adopted by the World Health Assembly in 1981;
Convention on the Rights of the Child, adopted by the UN General Assembly in 1989;
Innocenti Declaration, passed by the World Health Organization (WHO) and the United Nations Children’s Fund (UNICEF) in 1990; and the
Maternity Protection Convention, revised by the International Labour Organization in 2000.
These various documents have different implications in terms of international law. The Universal Declaration, for instance, is a general statement of principles that adopted by the General Assembly, but did not carry by itself the force of international law. This was achieved with the adoption of two treaties: the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. The International Covenant on Economic Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Maternity Protection Convention are treaties under international law, and thus are binding upon the countries that ratify. The United Nations also has committees charged with overseeing the implementation of these treaties. By contrast the International Code and the Innocenti Declaration are similar to recommendations for national action for signatory nations, but fall short of the same imperative to implement as do treaties. Nonetheless, they all represent official statements of the global governing body, and have substantial support from the international community.
Universal Declaration of Human Rights. The Universal Declaration of Human Rights does not mention infant care, children, maternity or breastfeeding in particular. Nonetheless, several provisions are applicable to a discussion of several aspects of the breastfeeding debate. Several of these provisions could be interpreted to support a woman’s right to breastfeed and/or an infant’s right to be breastfed.
First, and most directly applicable to the question of breastfeeding is Article 25, which calls for the right to "a standard of living adequate for … health and well being," which including food, and access to medical care. Moreover, Article 25 states that "motherhood and childhood are entitled special care and assistance." Since breast milk is a food, and according to many experts is the only food that the vast majority of babies should have in the first months of life, this provision implies that infants may have a right to be breastfed. Moreover, at least one advocate has likened breast milk to medicine, harkening to the guarantee of access to medical care, because of the health benefits it affords infants, arguing:
Would we not be outraged if it became well known that a relatively cheap, widely available medicine was being withheld from millions of human beings who could benefit from this? Would we not seek early, urgent action if we understood that that not using this product greatly increased premature deaths (probably at least a million preventable deaths annually); resulted in higher incidence of infections, other illnesses and malnutrition; caused more allergies; added substantially to the risk of certain common cancers; contributed substantially to unwanted pregnancies; was a factor in impoverishing many poor families; and had an adverse impact on the environment in most countries? Increasing the prevalence and duration of breastfeeding would provide all these benefits. Breastmilk is not a medicine, but breastfeeding can prevent all these problems.
Second, Article 27 of the Universal Declaration states "everyone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." This provision is applicable to promoting breastfeeding rights, both as a cultural practice, and with respect to scientific advancement. Medical researchers continue to collect evidence of the health benefits of breastfeeding to both women and infants. Thus scientific advances documenting the health benefits of breastfeeding provide more impetus for articulating an expressed right to breastfeed or to be breastfed.
Third, two provisions in the Universal Declaration are applicable to helping women balance breastfeeding with full participation in the public sphere. The first is Article 23, which discusses employment. It not only guarantees that everyone has a "right to work," but calls for "just and favourable conditions of work" and "the right to equal pay for equal work" without discrimination. In addition, Article 21, Section 2 states, "everyone has the right of equal access to public service in his country." The need to nurse or breastfeed has been led to cases of discrimination against women. Some women have argued that their employers have not accommodated their biological needs to express milk or to nurse, and have suffered discrimination in the workplace as a result.
Moreover, breastfeeding has been used as a means to prohibit some women from full participation in the public sphere. For instance, some states in the United States exempt lactating women from jury duty, rather than accommodating their biological needs by providing breaks to express milk or nurse, and on-site child care. Thus lactating mothers do not have the opportunity to be included in a civic duty that women in the 1960s fought to attain. Similarly, in 2000 a female member of the British Parliament asked whether she would be permitted to breastfeed her child in the House of Commons. A Parliamentary committee eventually decided to accommodate lactating MPs and visitors with a private space for breastfeeding, but stopped short of stating that lactating MPs could breastfeed on the House floor or in committee. Consequently, Parliamentary policy does not help women MPs to simultaneously exercise their rights to breastfeed and to participate fully in public service.
However, at least two provisions in the Universal Declaration of Human Rights may be construed to discourage breastfeeding or interfere with the mother-child dyad formed by breastfeeding. The first of these is Article 1, which reads, "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood." This provision clearly applies to mothers, whether they breastfeed or not, since it implies that they are capable of making sound, informed decisions about infant care. These sound, informed decisions may very well lead to the decision not to breastfeed, and a choice that is clearly theirs to make. This interpretation stands in opposition to breastfeeding advocates who argue that women should not receive information about pollutants in breast milk, information about infant formula, or have access to infant formula without a doctor’s prescription, because such information or access might lead women to decide not to breastfeed. Moreover, some advocates go so far as to say that mothers with HIV or even AIDS should be encouraged to breastfeed, rather than allowing women with HIV/AIDS to use formula because other women who are not HIV positive might want to use infant formula.
Article 9 of the Universal Declaration states that "No one shall be subjected to arbitrary arrest, detention or exile," a human right that clearly applies to children as well as adults. This provision would clearly argue against the practice of incarcerating infants with their mothers so that they may breastfeed.
International Covenant on Economic, Social and Cultural Rights. The second example of applicable international human rights law is the International Covenant on Economic, Social and Cultural Rights (hereafter ICESCR). This treaty set out to enshrine many of the principles articulated in the Universal Declaration into international law. This treaty was passed by the UN General Assembly in 1966 and entered into force in January 1976, when the requisite number of countries had ratified the treaty. The ICESCR reiterates and expands upon many of the principles first articulated in the Universal Declaration; many of these provisions are applicable to the question of breastfeeding rights, although like the Universal Declaration, neither breastfeeding nor lactation is specifically mentioned. Among those provisions that could be interpreted to support a woman’s right to breastfeed, and that essentially duplicate principles first articulated in the Universal Declaration are a statement of equality of men and women (Article 3), and a general statement recognizing the right to work (Article 6, Section 1) and to participate in political and economic freedoms (Article 6, Section 2).
Other provisions of the ICESCR expand upon the principles first articulated in the Universal Declaration, and may be used to justify to a woman’s right to breastfeed or a child’s right to be breastfed. For example, Article 10 protects the family as the fundamental social unit; Section 2 specifies that mothers need "special protection" during and after child birth, including paid leave from work, or leave with government benefits. Presumably such leaves would enable working mothers to breastfeed without interruption.
Similarly, the ICESCR includes expanded protections of the right of all persons to adequate standard of living (Article 11) and the "highest possible attainable standard of physical and mental health" (Article 12). In particular, Article 11 calls for "disseminating knowledge of the principles of nutrition," which would certainly include the health and nutritive benefits of breastfeeding (Article 11, section 2a). Similarly, Article 12 calls for the "reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child," (Article 12, Section 2c) and "the prevention, treatment and control of epidemic, endemic, occupational and other diseases." Certainly breastfeeding reduces infant mortality, promotes the healthy child development, supports the "highest possible standard for physical health" and prevents various infectious diseases. By implication, these provisions would also provide a justification for a right to breastfeed, and a child’s right to be breastfed.
Convention for the Elimination of All Forms of Discrimination Against Women. The Convention for the Elimination of All Forms of Discrimination Against Women (hereafter CEDAW) was passed by the UN General Assembly in December 1979, and entered into force as an international treaty in 1981. It is a product of years of study by the UN Commission on the Status of Women, first established in 1946, and expands upon the provisions of the 1952 Convention on the Political Rights of Women. It is a sweeping document, covering the widest possible interpretation of human rights. It is also notable because it is the first international human rights treaty that specifically mentions lactation. The word appears once, in Article 12, which calls upon ratifying states to "provide access to health care and family planning services to women, and services appropriate to pregnancy, post-partum care and adequate nutrition during lactation."
However, as in the case of the Universal Declaration and the ICESCR, several other provisions of the CEDAW can be interpreted to support a woman’s right to breastfeed. First, Article 2 includes numerous provisions related to eliminating sex discrimination and providing judicial remedies to women who experience such discrimination. Article 7 calls upon ratifying nations to guarantee women’s rights to hold public office and to participate in public life. These provisions could be used to protect a women’s right to breast feed in public, breastfeed and participate in civic life and to breastfeed while in paid employment.
Second, the CEDAW calls for several specific types of employment protections. Article 11 requires ratifying nations to include eliminating sanctions against women who become pregnant or take a maternity leave, calling for the implementation of paid maternity leaves, and to ensure that women work in healthy and safe environments that neither jeopardize their health or their reproductive capacity. The applications of the first two of these provisions to the question of breastfeeding are obvious. The third applies to breastfeeding insofar as breastfeeding is a natural, biological consequence of pregnancy and childbirth, and as such can be considered a reproductive function. In addition, the numerous references to family planning in Articles 11 and 12 also could be interpreted to support a woman’s right to breastfeed, since exclusive breastfeeding suppresses lactation, and is an inexpensive and safe form of family planning.
Finally, the CEDAW does not forget children, even though its focus is on ending discrimination against women. In two provisions, Article 5 and Article 16, which articulate the rights of women in the family, both recognize that "the interest of the children is the primordial consideration in all cases." Breastfeeding advocates universally agree that being breastfed, or at the very least, being fed breast milk, is in the child’s best interest, except in extremely rare circumstances.
By contrast, several provisions of the CEDAW focus on the care of children, and the language used in these passages could be interpreted by some as undermining the efforts to promote and encourage breastfeeding. Specifically, these passages reflect the "liberal feminist" ideology that dominated the women’s movement in industrialized countries at the time. Liberal feminism seeks to downplay the differences between men and women, except perhaps in reproductive matters, and to emphasize that child care and child rearing are responsibilities of men and women alike. Thus, the CEDAW stipulates that ratifying nations must, "…ensure that family education includes … a recognition of the common responsibility of men and women in the upbringing and development of their children…" Similarly, Article 10, which articulates that women have a right to education equal and identical to that of men includes the following provision, "the elimination of any stereotypical concept of the roles of men and women at all levels and in all forms of education by… the revision of textbooks and school programmes…"
Breastfeeding, of course, is one form of child rearing that cannot be shared by men and women alike. Consequently, the CEDAW’s language about shared responsibilities could be construed as favoring bottle feeding infant formula – or at least undermining efforts to promote breastfeeding – as a means to ensure that child rearing responsibilities are more equitably distributed. Similarly, some breastfeeding advocates in the United States are working to revise public K-12 curricula to includes examples of breastfeeding as a normal, healthy activity. Insofar as these curricular materials might be construed as depicting women in a "stereotypical" fashion, using such materials would constitute a violation of the CEDAW.
The International Code of Marketing of Breast-Milk Substitutes. The International Code of Marketing of Breast-Milk Substitutes (hereafter the Code) is a document generated by the World Health Organization, and passed by the World Health Assembly in 1981. The Code is the international community’s response to formula manufacturers’ marketing practices, particularly in the developing world. By the 1970s, physicians working in the developing world alerted the United Nations to the rising rates of infant death and malnutrition that they saw among formula fed infants. In response to growing international concern, the US-based Infant Formula Action Coalition (INFACT) initiated a boycott against the Nestlé corporation in 1977; Nestlé was a major manufacturer of infant formula worldwide. INFACT charged that Nestlé’s aggressive marketing practices in the developing world led women to use infant formula rather than to breastfeed their babies. These practices included extensive use of advertising through the mass media, distribution of formula in hospitals and the use of "milk nurses." These women were hired to sell formula on commission. They visited mothers in hospital maternity wards wearing nurses’ uniforms, which were meant to convey the medical and scientific validity of formula.
Once women began to use infant formula, they were unable to produce breast milk to feed their babies; the capacity to breastfeed is a "use it or lose it" proposition. Infant formula, however, is expensive. Consequently, mothers would over dilute the formula to make it last longer, or use cow’s milk, corn starch or other "milky looking" substitutes instead of formula. Severely malnourished infants were the result. Moreover, clean water is in short supply in many regions of the world. Formula mixed with contaminated water or placed in bottles that were not cleaned sufficiently also caused diarrhea.
The Code makes several recommendations, including:
Instructing health care workers to promote breastfeeding and clearly state the hazards associated with use of formula;
Banning the distribution of free formula samples to new mothers and the use of aggressive marketing practices; and
Prohibiting the use of "milk nurses" and forbidding formula company salespersons from providing instruction on infant care to new mothers.
Several countries acted immediately to implement the provisions of the Code, and formula companies came under significant pressure to conform to these international standards.
Certainly, the Code supports and encourages women to breastfeed; the international community clearly wants women to breastfeed. However, the exact language of the Code is devoid of specific mentions of rights. The one exception is the opening sentence of the Preamble, which states, "affirming the right of every child and every pregnant and lactating woman to be adequately nourished, as a means of attaining and maintaining health…" Since the act of lactation provides no nutritional benefit to the mother, this statement arguably is more supportive of a child’s right to be breastfed rather than the mother’s right to breastfeed.
Interestingly, however, much of the language of the Code focuses on providing the mother with informational and education materials about the benefits and risks of both breast milk and infant formula, but does so in a language devoid of any mention of "rights." Moreover, infant formula manufacturers are subject to a variety of restrictions. In addition to those listed above, informational materials about infant formula must be presented in a way that is free of depictions of infants, must mention the superiority of breast milk, and cannot state or imply that formula is in anyway equivalent or superior to breast milk. The most interesting focus however, is on the power of educating women and entrusting them to make the best decision for their children, which harkens back to Article 1 of the Universal Declaration, which states that individuals are "endowed with reason and conscience."
The Code however, suffers from a serious limitation: it does not have the force of international law enjoyed by the ICESCR or the CEDAW. Rather, it is a recommendation, and as such it is nonbinding. While it provides instructions to formula manufacturers, and model legislation for member nations to enact, the Code itself is a recommendation. In this respect, it is akin to the Universal Declaration: a statement of international consensus, but not by itself, international law. Secondly, the Code does not designate or establish an international body to monitor the implementation of the Code internationally. Rather, as a recommendation, the Code asks member states to implement and monitor its provisions at the national level.
Innocenti Declaration. In 1990, the WHO and UNICEF drafted and passed the Innocenti Declaration. This declaration restates the WHO’s recommendation for breastfeeding duration, and calls upon member countries to promote a "breastfeeding culture" rather than a "bottle-feeding culture." Specific recommended actions of the Innocenti Declaration include creating national committees in member countries that bring together government agencies to coordinate their breastfeeding promotion efforts, asking member nations to fully implement the International Code of Marketing of Breast-milk Substitutes, to enact legislation promoting breastfeeding rights, to collect data and monitor national breastfeeding trends, and to promote the Baby-Friendly Hospital Initiative (BFHI). BFHI was launched by UNICEF and WHO in 1991. Hospitals can earn a "baby-friendly" designation if they implement the ten steps articulated in the BFHI. These include allowing women to initiate breastfeeding within a half-hour of birth, rooming in the child with the mother as soon as possible, not feeding babies formula or water, not using pacifiers, training staff, and providing support to breastfeeding mothers. According to UNICEF, some 15,000 hospitals in 134 countries have earned baby-friendly status since 1991.
Like the Code, the Innocenti Declaration is a series of recommendations, an "action plan" given to governments by these two UN bodies. The Innocenti Declaration is not framed with the language of "rights;" rather it is framed with the language of empowerment. For example, the Innocenti Declaration states that "all women should be enabled to practise exclusive breastfeeding…" Moreover, it states, that countries should try to "increase women’s confidence in their ability to breastfeed. Such empowerment involves the removal of constraints…" This terminology implies that women face serious constraints, especially cultural constraints, which discourage breastfeeding. These constraints are not easily eliminated by the legal articulation of an abstract right, since they include a "bottle-feeding culture," a lack of self-confidence, hospital practices that undermine the establishment of nursing, and unsupportive family members.
The sole instance of the word "rights" is in the passage that asks governments to enact "imaginative legislation protecting the breastfeeding rights of working women and established means for its enforcement" by 1995. While not the central focus of the document, this mention in the Innocenti Declaration clearly indicates that women have a right to breastfeed, and that working women in particular need protections of this right. However, a given the nature of the Innocenti Declaration, this passing mention does not carry with it the force of international law.
Convention on the Rights of the Child. The Convention on the Rights of the Child (CRC) was passed by the UN General Assembly in November 1989 and took the force of law in September 1990. Since the adoption of the CRC, breastfeeding advocates have debated whether children have a right to be breastfed. Bolstering their case is Article 24, which requires states to "recognize the right of the child to the enjoyment of the highest attainable standard of health," calls upon states to decrease infant mortality rates, and to fight the spread of disease and malnutrition. Article 24, Section 2e specifically mentions breastfeeding, which calls states to ensure that all segments of society have access to information about child health and nutrition, especially, "the advantages of breastfeeding." Moreover, the Convention calls for special efforts to ensure that the rights of children in special circumstances, in particular children who are seeking refugee status, and children with disabilities. Consequently, if the CRC is interpreted to protect a child’s right to be breastfed, then there are additional protections for these particularly vulnerable populations. At a minimum, these provisions call upon ratifying nations to take additional steps to ensure that mothers of children with disabilities or mothers who are refugees are able to breastfeed for as long as possible or medically necessary.
However, there are other provisions in the CRC that could be construed to undermine a child’s right to be breastfed. First, several provisions recognize the role of the parents, and the parents’ rights to make decisions regarding the care of their children. Similarly, the state is required to respect the "responsibilities, rights and duties of parents" and to ensure that children are not separated unnecessarily from their children, except in cases of abuse or neglect, or when such separation is otherwise in the "best interests of the child." Parents could conceivably decide, based on all of the evidence available and against the advice of medical professionals and breastfeeding advocates, that breastfeeding is not the best option for themselves or in their child’s best interests. In this case, a child’s right to breastfeed, if the CRC is interpreted to include such a right, would be in conflict, and would probably be subject to, the parents’ autonomy in the area of child-rearing.
Another way that the CRC may undermine a child’s right to breastfeed is in Article 2, which states in part, "States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs of the children’s parents, legal guardians, or family members." This provision against "punishment" would imply that breastfeeding children should not be placed in prison with their mothers in order to continue the breastfeeding relationship. Thus the child’s implied right to be breastfed comes into conflict with the child’s expressed right to be free from punishment based on her/his parents’ incarcerated status.
Maternity Protection Convention of 2000. The final piece of international law that is applicable to breastfeeding is the Maternity Protection Convention (MPC) of 2000, which was passed by the General Conference of the International Labour Organization. This law, which amends the Maternity Protection Convention of 1952, includes numerous provisions that are directly applicable to a mother’s right to breastfeed while being engaged in paid employment outside the home. First, the MPC calls for a minimum of 14 weeks of paid maternity leave. The leave may be paid by the private employers or by the government’s social insurance system. This period of leave, while falling short of the six months recommended for exclusive breastfeeding, does enable women to breastfeed, and presumably breastfeed exclusively, for over three months. Second, the MPC specifically prohibits terminating women who become pregnant or take maternity leave, and prohibits any discrimination in the work site against women who are pregnant, take leave or are breastfeeding.
Third, the MPC requires that breastfeeding mothers be permitted at least one break daily, or work reduced hours, to breastfeed; states may determine the number and duration of such breaks. Moreover, under the MPC employers cannot compel pregnant or breastfeeding women to work in occupations or locations that pose a significant risk to the mother or her child.
Unlike the Innocenti Declaration and the Code, the MPC does refer explicitly to a breastfeeding right, in the context of a "right to one or more daily breaks or a daily reduction in hours" in Article 10. This language falls short of an unlimited right to breastfeed, although as a practical matter, it implies that if women have a right to a break to breastfeed during work hours, they also have a right to breastfeed in other circumstances as well.
DISCUSSION: BREASTFEEDING AS A HUMAN RIGHTS QUESTION
The preceding analysis of international rights law highlights a number of difficult issues in understanding and advocating for breastfeeding rights. First, a right to breastfeed is implied in a number of United Nations human rights documents, and many of these documents clearly indicate that the international community wants women to breastfeed. Yet these documents rarely explicitly state that women have a right to breastfeed. Rather, the only international treaty that alludes to a woman’s right to breastfeed is the Maternity Convention of 2000, and then it is included in a reference about a right to breaks or shorter work hours. There is no other explicit statement of a right to breastfeed.
The right is implied in a number of provisions, and most directly in the human rights language that focuses on parents’ rights to make decisions about how to raise their children. However, these provisions more accurately advocate for parental autonomy, which in this case, certainly implies that women have a right to choose to breastfeed. However, they also have a right to choose not to breastfeed.
Do children have a right to be breastfed? This question is more problematic. While several of the specific rights articulated in the Convention on the Rights of the Child could be interpreted to asset an infant’s right to be breastfed, this right is not explicitly stated anywhere. Moreover, articulating children’s rights is more difficult, given that childhood is a period of dependency and children enjoy fewer rights and privileges than adults. Recognizing this asymmetry, most human rights documents, including the CRC, affirm the rights of parents, while placing the interests of the child paramount. Rights and interests are not the same thing, and having a particular interest in being breastfeed is much different than a right to be breastfed.
While advocates clearly believe that a woman has a right to breastfeed, they have also recognized the particular problem of articulating an infant’s right to be breastfed. If an infant has a right to be breastfed, but the mother maintains her right to choose to breastfeed, then an infant and her mother are placed in conflict. How would the state protect an infant’s right to breastfeed, by coercing mothers? Would breastfeeding cease to be a right, which implies choice, and would become a duty, which lacks the element of choice imbedded in rights. Recognizing this difficulty, breastfeeding advocates have developed a consensus statement that expresses that mothers and infants together have the right to breastfeed, and the state should ensure that social conditions are in place that would enable them to enjoy this relationship.
Similarly, even if international law did explicitly state that an infant has a right to be breastfed, international law would also need to provide some indication of how to balance this right against others. One case in point is the issue of incarcerated mothers. Should an infant go to prison with its mother in order to exercise its right to breastfeed, which would clearly violate other essential human rights?
In response to this problematic, some breastfeeding advocates call for reframing the child’s right not as a right to be breastfed, but a child’s right to its mother’s breast milk. In this articulation, then, incarcerated women would be permitted to breastfeed their infants during visitation periods, and to express milk during other times, to provide to her child.
This abstract discussion, however, does not include the brutal fact that for too many children, not being breastfed means illness, malnutrition and even death. In too many cases, the mothers and infants have a series of Hobson’s choices. Should a mother with HIV or AIDS breastfeed, even if she transmits the virus to her baby, because the baby will live longer with AIDS than she would if she contracted diarrhea from unclean water? Can a baby live to appreciate that she was not jailed as a political prisoner with her mother if her family cannot afford to purchase infant formula while her mother is incarcerated?
Moreover, the protections found in international law are only clearly binding upon the countries that ratify the treaties, or otherwise agree to abide by the provisions of the international document. As George Kent notes, when countries ratify a treaty, the country then is obligated to enforce its provisions, and is answerable to the UN’s treaty governing bodies. Advocates can then use this argument as a means to enact national and subnational legislation consistent with these treaties and agreements. Moreover, such laws would provide advocates with some means to redress violations of human rights. This issue is particularly important for human rights advocates in the United States. Of the relevant international laws and agreements discussed above, the United States has ratified none. Moreover, the United States cast the only dissenting vote against the infant formula marketing Code. In fact, only fourteen countries have ratified the Maternity Convention of 2000. Consequently, one scholar in the US argues that advocates should apply pressure on policy makers to ratify these international conventions, and to use them as a means to bring US maternity leave and child care policies more in line with international standards. The same argument could be made in terms of protecting breastfeeding rights.
However, I would argue that a narrow focus on the issue of breastfeeding is rather limiting. The focus needs to be placed on the rights and wellbeing of women and children, more generally and irrespective of age. For example, when discussing children of HIV infected mothers, one should not be forced to argue that a baby will live longer with AIDS than with diarrhea or malnutrition. The question should be how to make sure that mothers with HIV and AIDS have sufficient supplies of clean water and infant formula to be able to care for their babies, eliminate the chance of HIV transmission through breastfeeding and see their children live into adulthood. Similarly, we need to make sure that mothers have adequate information to make good decisions about infant care and feeding. However, if they choose to not to breastfeed, breastfeeding advocates need to respect this choice, and work to ensure that mothers know how to prepare formula properly, and that the family can afford to purchase the formula. Moreover, advocates of breastfeeding should not merely accept that water supplies are contaminated and argue that women should breastfeed as a result. Rather, all human rights advocates need to work to ensure that all families have safe water supplies, not only for their infants drinking formula, for the health and wellbeing of the entire family.