This article is written by Mehak and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).
Part III of the Indian Constitution provided us with certain fundamental rights one of the rights guaranteed is “the right to life and personal liberty” to every person. Over the years, through judicial interpretation, the meaning of ‘life and personal liberty has expanded to include Right to Dignity, Right to Livelihood, Right to Enjoy Pollution-Free Air and Water, Right to Education, Right to privacy, etc. In 2018 the Madras High court asked the central government why not make breastfeeding a fundamental right protected under article 21 of the Constitution.
UN experts highlighted that “children have the right to the best attainable standard of health.” “Breastfeeding is an important component of this, followed by safe and healthy diets as they grow”. Furthermore, the United nation has provided certain practical steps to promote, support, and protect breastfeeding, for instance, paid maternity leave, safe workplace spaces for feeding, expressing, and storing milk, better training for health workers, and ensuring that women have accurate information so they can make informed decisions about optimal feeding practices. Additionally, breast milk substitutes of good quality should be regulated and should be made affordable so that even middle-class parents can afford them.
Breastfeeding laws in other countries
United Arab Emirates
The United Arab Emirates introduced a rule in 2014 making it mandatory for women to breastfeed their children until they reach the age of two. An additional clause was included in children rights law, which also mandates that all government offices provide a nursery for working moms who choose to breastfeed their children as well as if a woman due to some health reasons is unable to breastfeed the infant the emirates’ Federal National Council will supply her with a wet nurse. (See here)
As per section 7AA of the Federal Sex Discrimination Act 1984 discrimination either directly or indirectly on the basis of breastfeeding is prohibited. Additionally, in 1964 Australian Breastfeeding Association was established in Melbourne, Victoria. (See here)
Similar to Australian law as per the Equality law, 2010 of Britain it is illegal for a business to discriminate on the basis of breastfeeding. (See here)
As per Khyber Pakhtunkhwa Protection of Breastfeeding and Child Nutrition Act 2015, it is mandatory for manufacturers to write on the containers of the products in bold that “Mother’s milk is best for your baby and helps in preventing diarrhea and other illnesses” as well as promotion of packed milk by the health workers for the child up to the age of twelve months is prohibited. (See here)
In Brazil, advertising and promotion of baby formula are illegal as well as similar to the laws of Britain entities who prevent or discriminate against breastfeeding in So Paulo incur a fine. (See here)
In Norway, it is permitted for women to take up to 36 weeks off work with 100 percent pay, or 46 weeks with 80 percent pay as well as similar to the laws of Pakistan advertising formula is prohibited. (See here)
Discrimination against women on the basis of breastfeeding is prohibited under the Canadian Charter of Rights and Freedoms, however, Canada is one of the few countries which do not provide women with paid breastfeeding breaks. Despite the fact that over 26% of moms breastfeed, many are forced to discontinue owing to job constraints. (See here)
United States of America
In the USA total of 50 states allow public breastfeeding including the recent introduction in Utah and Idaho. According to the Centers for Disease Control and Prevention, over 83 percent of American women attempted breastfeeding at least once in 2015. There are statutes in seventeen states that protect breastfeeding moms who are called to jury duty. Certain states provide the option to postpone for a year, while others give the option to be exempt. (See here)
Though there are various countries where breastfeeding is normalized and widely accepted by society for instance in France, Iceland, Czech Republic, Norway, Spain, Poland, and New Zealand, etc.
Controversy on breastfeeding around the world
In December 2011, the social media platform Facebook banned photographs of moms breastfeeding, but after public outcry, the photos were reinstated. As per the company, the photographs were removed by them as the photographs were against the terms and conditions of Facebook. After one year of the controversy in February 2012, the company again removed photographs showing mothers breastfeeding for the second time. (See here)
At the back of a Target shop in Houston, Texas, a woman was breastfeeding her baby. Despite being covered, she was requested by the employees of Target shop to transfer to a fitting room. one of the employees stated, “You can get a ticket and be reported for indecent exposure”. She posted about the abuse on social media, and as a result, a number of women throughout the country launched public “nurse-ins” at Target shops. (See here)
Another controversy arose in London when the Five Star hotel asked a woman to use a cloth to cover herself while she was breastfeeding. As a result, mothers performed public breastfeed outside the Hotel. (See here)
When Babytalk magazine in the United States published a photo of a model breastfeeding a baby with a bare breast in 2006, despite the fact that the model’s nipple was not visible, the editors received several complaints from readers, many of whom were mothers, who remarked that the image was “disgusting.” A quarter of the 4,000 respondents who answered a follow-up poll thought the cover was negative. (See here)
Position in India
In India, there is no statute which deals with breastfeeding as a result the prevalence and social acceptance of breastfeeding vary from region to region. In India, higher socioeconomic groups are less likely to breastfeed in public, whereas lower socioeconomic groups are more likely to do so. The court in Dr. Shanti Mehra v. the State of Uttarakhand, 2016 while giving the judgment held that there should be a system for breastfeeding or nursing care at the workplace but till now no provision has been introduced by the government. Mr. Justice Kirubakaran while asking to declare breastfeeding a fundamental right of new-borns protected under Article 21 again asked the government to adopt a new law mandating the provision of breastfeeding facilities in public places and made it mandatory for government employees who take maternity leave to breastfeed their new-borns, as well as enacting penalties for officials who do not grant maternity leave.
Additionally, the court asked the government to exercise its power under article 249 of the constitution and pass a law making it obligatory for women to breastfeed their new-borns, as done in the United Arab Emirates. (See here) For the past few years, the court is trying to get various answers from the government but no actions have been taken to date. The court in Ajit Datt v. Ethel Walters, 2000 (4) AWC 3270 while observing these facts stated that no one can separate a child from a natural mother, even if it meant putting his life in peril. Adoption occurs after the child is no longer reliant on the natural mother for food and is capable of surviving without her.
In Ruhi v. State of U.P., 2014 a three months baby was taken away from his mother. As a result, Noman’s corpus (infant) was denied his natural right to breastfeed, which is critical for keeping him healthy and active at that age. Following his separation from his mother, the infant appears to have been top feeding, which could be a primary cause of persistent diarrhea. The claims that the mother was involved in the kidnapping of her husband’s sister, they cannot take away the fundamental right of the infant to breastfeed.
The court in Hardeep Kumar Sharma v. Madan Gopal Sharma, 2008 acknowledged the welfare of the kid and held that it should take precedence over the legal rights and given custody to the maternal aunt instead of the father of the child.
Section 37B in the Prevention of Food Adulteration Rules, 1955
In India Section 37B The Prevention of Food Adulteration Rules, 1955 deals with Labelling of infant milk substitute and infant food according to which the container of the food should indicate in a clear a statement “MOTHER’S MILK IS BEST FOR YOUR BABY” with certain other statements such as the product should be consumed only when prescribed by the health worker, etc. (See here)
Controversies in India
On the cover and within its new March edition, Grihalakshmi created history by displaying a breastfeeding mother and infant. Gilu Joseph, a 27-year-old model, poet, writer, and air hostess are featured on the cover, while an anonymous mother with her child is featured within the issue. Many people commented that they accept breastfeeding but expect women to keep private issues private, likened feeding an infant to other body functions that require privacy, and condemned Joseph for indulging in “nudity” in order to land a magazine cover. (See here)
In Kolkata, the employee of a shopping centre advised a mother who wanted to breastfeed her infant not to undertake such “house chores” in a shopping centre. When the dispute erupted, the manager of the shopping centre responded back by saying that breastfeeding is not permitted in stores and that the mother should have organized her day better because her infant did not require breastfeeding “at any time.”(See here)
Inalienable right of breastfeeding
The Karnataka High court recently in Husna Banu v. the State of Karnataka, 2021 while hearing petitions involving the custody of a child between the biological mother and the foster mother has given a landmark judgment in which breastfeeding is held to be an inalienable right of lactating mothers, and this attribute of motherhood is a fundamental right protected under Article 21 (right to life) of the Constitution of India the single judge bench held by Justice Krishna S Dixit added that it is a case of concurrent rights where not only breastfeeding right of a lactating mother is protected but the right of the suckling infant for being breastfed is also protected.
Even in the 21st century in many countries breastfeeding in public places is considered taboo many people consider breastfeeding a private act that should not be done in public places. Many at time controversies arose because of women breastfeeding their children in public places. On the other hand, in the countries where breastfeeding is normalized due to job concerns various women stop breastfeeding at earlier stages. In India, there was no law relating to breastfeeding recently while delivering the judgment, the Karnataka high court took a significant step toward acknowledging the importance of breastfeeding in contemporary India by making breastfeeding a fundamental right under Article 21 of the Indian constitution and protecting the right of a suckling infant to be breastfed. However, it cannot be overlooked that certain guidelines are required in order to educate the general public about the importance of breastfeeding it can be done by providing them with certain maternal benefits and making it mandatory for women to breastfeed, as well as providing them with an environment in a public place where they can easily breastfeed their infants.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: